[Title 45 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2009 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
45
Parts 500 to 1199
Revised as of October 1, 2009
Public Welfare
________________________
Containing a codification of documents of general
applicability and future effect
As of October 1, 2009
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 45:
SUBTITLE B--Regulations Relating to Public Welfare
(Continued)
Chapter V--Foreign Claims Settlement Commission of
the United States, Department of Justice 5
Chapter VI--National Science Foundation 37
Chapter VII--Commission on Civil Rights 259
Chapter VIII--Office of Personnel Management
[Reserved]
Chapter X--Office of Community Services,
Administration for Children and Families, Department
of Health and Human Services 301
Chapter XI--National Foundation on the Arts and the
Humanities 309
Finding Aids:
Table of CFR Titles and Chapters........................ 555
Alphabetical List of Agencies Appearing in the CFR...... 575
List of CFR Sections Affected........................... 585
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 45 CFR 500.1 refers
to title 45, part 500,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2009), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
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instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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to materials already published elsewhere. For an incorporation to be
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
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contacting the agency, you find the material is not available, please
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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and Finding Aids. This volume contains the Parallel Table of Authorities
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alphabetical list of agencies publishing in the CFR are also included in
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that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
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in the Code of Federal Regulations.
INQUIRIES
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the top of odd-numbered pages.
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or write to the Director, Office of the Federal Register, National
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2009.
[[Page ix]]
THIS TITLE
Title 45--Public Welfare is composed of four volumes. The parts in
these volumes are arranged in the following order: Parts 1-199, 200-499,
500-1199, and 1200 to end. Volume one (parts 1-199) contains all current
regulations issued under subtitle A--Department of Health and Human
Services. Volume two (parts 200-499) contains all current regulations
issued under subtitle B--Regulations Relating to Public Welfare, chapter
II--Office of Family Assistance (Assistance Programs), Administration
for Children and Families, Department of Health and Human Services,
chapter III--Office of Child Support Enforcement (Child Support
Enforcement Program), Administration for Children and Families,
Department of Health and Human Services, and chapter IV--Office of
Refugee Resettlement, Administration for Children and Families,
Department of Health and Human Services. Volume three (parts 500-1199)
contains all current regulations issued under chapter V--Foreign Claims
Settlement Commission of the United States, Department of Justice,
chapter VI--National Science Foundation, chapter VII--Commission on
Civil Rights, chapter X--Office of Community Services, Administration
for Children and Families, Department of Health and Human Services, and
chapter XI--National Foundation on the Arts and the Humanities. Volume
four (part 1200 to end) contains all current regulations issued under
chapter XII--Corporation for National and Community Service, chapter
XIII--Office of Human Development Services, Department of Health and
Human Services, chapter XVI--Legal Services Corporation, chapter XVII--
National Commission on Libraries and Information Science, chapter
XVIII--Harry S Truman Scholarship Foundation, chapter XXI--Commission of
Fine Arts, chapter XXIII--Artic Research Commission, chapter XXIV--James
Madison Memorial Fellowship Foundation, and chapter XXV--Corporation for
National and Community Service. The contents of these volumes represent
all of the current regulations codified under this title of the CFR as
of October 1, 2009.
For this volume, Susannah C. Hurley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 45--PUBLIC WELFARE
(This book contains parts 500 to 1199)
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SUBTITLE B--Regulations Relating to Public Welfare (Continued)
Part
chapter v--Foreign Claims Settlement Commission of the
United States, Department of Justice...................... 500
chapter vi--National Science Foundation..................... 601
chapter vii--Commission on Civil Rights..................... 701
chapter viii--Office of Personnel Management [Reserved]
chapter x--Office of Community Services, Administration for
Children and Families, Department of Health and Human
Services.................................................. 1080
chapter xi--National Foundation on the Arts and the
Humanities................................................ 1100
[[Page 3]]
SUBTITLE B--Regulations Relating to Public Welfare (Continued)
[[Page 5]]
CHAPTER V--FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES,
DEPARTMENT OF JUSTICE
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SUBCHAPTER A--RULES OF PRACTICE
Part Page
500 Appearance and practice..................... 7
501 Subpoenas, depositions, and oaths........... 8
502 Public information-Freedom of Information
Act..................................... 11
503 Privacy Act and Government in the Sunshine
Regulations............................. 17
SUBCHAPTER B--RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER TITLE
I OF THE WAR CLAIMS ACT OF 1948, AS AMENDED
504 Filing of claims and procedures therefor.... 25
505 Provisions of general application........... 26
506 Eligibility requirements for compensation... 27
507 Payment..................................... 30
508 Hearings.................................... 30
SUBCHAPTER C--RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER THE
INTERNATIONAL CLAIMS SETTLEMENT ACT OF 1949, AS AMENDED, AND RELATED
ACTS
509 Filing of claims and procedures therefor.... 33
[[Page 7]]
SUBCHAPTER A_RULES OF PRACTICE
PART 500_APPEARANCE AND PRACTICE--Table of Contents
Sec.
500.1 Appearance and representation.
500.2 Notice of entry or withdrawal of counsel in claims.
500.3 Fees.
500.4 Suspension of attorneys.
500.5 Standards of Conduct.
500.6 Disqualification of former employees.
Authority: Sec. 2, Pub. L. 896, 80th Cong., 62 Stat. 1240, as
amended (50 U.S.C. App. 2001); sec. 3, Pub. L. 455, 81st Cong., 64 Stat.
12, as amended (22 U.S.C. 1622); 18 U.S.C. 207.
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 500.1 Appearance and representation.
(a) An individual may appear in his or her own behalf, or may be
represented by an attorney at law admitted to practice in any State or
Territory of the United States, or the District of Columbia.
(b) A member of a partnership may represent the partnership.
(c) A bona fide officer of a corporation, trust or association may
represent the corporation, trust or association.
(d) An officer or employee of the United States Department of
Justice, when designated by the Attorney General of the United States,
may represent the United States in a claim proceeding.
(e) In cases falling within the purview of subchapter B of this
chapter, persons designated by veterans', service, and other
organizations to appear before the Commission in a representative
capacity on behalf of claimants will be deemed duly authorized to
practice before the Commission if the designating organization has
received a letter of accreditation from the Commission. Petitions for
accreditation must be in writing, executed by duly authorized officer or
officers, and addressed to the Foreign Claims Settlement Commission of
the United States, Washington, DC 20579. Upon receipt of a petition
setting forth pertinent facts as to the organization's history, purpose,
number of posts or chapters and their locations, approximate number of
paid-up memberships, statements that the organization will not charge
any fee for services rendered by its designees in behalf of claimants
and that it will not refuse on the grounds of non-membership to
represent any claimant who applies for representation if the claimant
has an apparently valid claim, accompanied by a copy of the
organization's constitution, or charter, by-laws, and its latest
financial statement, the Commission in its discretion will consider and
in appropriate cases issue or deny letters of accreditation.
(f) A claimant may not be represented before the Commission except
as authorized in paragraphs (a) through (e) of this section.
Sec. 500.2 Notice of entry or withdrawal of counsel in claims.
(a) Counsel entering an appearance in a claim originally filed by a
claimant in the claimant's own behalf, or upon request for a
substitution of attorneys, will be required to file an authorization
signed by the claimant.
(b) When counsel seeks to withdraw from the prosecution of a claim,
he or she will be required to demonstrate that the client (claimant) has
been duly notified.
(c) When a claimant advises the Commission that counsel no longer
represents that claimant, a copy of the Commission's acknowledgment will
be forwarded to that counsel.
Sec. 500.3 Fees.
(a) The amount of attorney's fees that may be charged in connection
with claims falling within the purview of title I of the International
Claims Settlement Act of 1949, as amended (22 U.S.C. Sec. 1621-1627),
is governed by the provisions of 22 U.S.C.1623(f).
(b) The amount of attorney's fees that may be charged in connection
with claims falling within the purview of subchapter B of this chapter
is governed by the provisions of section 10 of the War Claims Act of
1948, as amended (50 U.S.C. App. 2009).
[[Page 8]]
Sec. 500.4 Suspension of attorneys.
(a) The Commission may disqualify, or deny, temporarily or
permanently, the privilege of appearing or practicing before it in any
way to any person who is found after a hearing in the matter--
(1) Not to possess the requisite qualifications to represent others
before the Commission; or
(2) To be lacking in character or integrity or to have engaged in
unethical or improper professional conduct; or
(3) To have violated sections 10 and 214 of the War Claims Act of
1948, as amended, or section 4(f) of the International Claims Settlement
Act of 1949, as amended.
(b) Contemptuous or contumacious conduct at any hearing will be
ground for exclusion from that hearing and for summary suspension
without a hearing for the duration of the hearing.
Sec. 500.5 Standards of Conduct.
The conduct of the members, officers and employees of the
Commission, including its special Government employees, is governed by
the Standards of Ethical Conduct for Employees of the Executive Branch
set forth in 5 CFR part 2635 and the Supplemental Standards of Conduct
for Employees of the Department of Justice set forth in 5 CFR part 3801.
Sec. 500.6 Disqualification of former employees.
The provisions of 18 U.S.C. 207 shall govern the post-employment
appearance of former Commission members, officers, and employees,
including special Government employees, in the capacity of agent,
attorney or representative on behalf of claimants before the Commission.
PART 501_SUBPOENAS, DEPOSITIONS, AND OATHS--Table of Contents
Sec.
501.1 Extent of authority.
501.2 Subpoenas.
501.3 Service of process.
501.4 Witnesses.
501.5 Depositions.
501.6 Documentary evidence.
501.7 Time.
Authority: Sec. 2, Pub. L. 896, 80th Cong., 62 Stat. 1240, as
amended (50 U.S.C. App. 2001); sec. 3, Pub. L. 455, 81st Cong., 64 Stat.
12, as amended (22 U.S.C. 1622).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 501.1 Extent of authority.
(a) Subpoenas, oaths and affirmations. The issuance of subpoenas,
the administration of oaths and affirmations, the taking of affidavits,
the conduct of investigations, and the examination of witnesses by the
Commission and its members, officers and employees is governed by the
provisions of 22 U.S.C. 1623(c) and 50 U.S.C. App. 2001(c).
(b) Certification. The Commission or any member thereof may, for the
purpose of a hearing, examination, or investigation, certify the
correctness of any papers, documents, and other matters pertaining to
the administration of any laws relating to the functions of the
Commission.
Sec. 501.2 Subpoenas.
(a) Issuance. A member of the Commission or a designated employee
may, on the member or employee's own volition or upon written
application by any party and upon a showing of general relevance and
reasonable scope of the evidence sought, issue subpoenas requiring
persons to appear and testify or to appear and produce documents.
Applications for issuance of subpoenas for production of documents shall
specify the books, records, correspondence, or other documents sought.
The subpoena will show on its face the name and address of the party at
whose request the subpoena was issued.
(b) Deposit for costs. The Commission or designated employee, before
issuing any subpoena in response to any application by an interested
party, may require a deposit in an amount adequate to cover fees and
mileage involved.
(c) Motion to quash. If any person subpoenaed does not intend to
comply with the subpoena, that person must, within 15 days after the
date of service of the subpoena, petition in writing to quash the
subpoena. The basis for the motion must be stated in detail. Any party
desiring to file an answer to a motion to quash must file the answer not
later than 15 days after the filing of the motion. The Commission will
[[Page 9]]
rule on the motion to quash, duly recognizing any answer thereto filed.
The motion, answer, and any ruling thereon will become part of the
official record.
(d) Appeal from interlocutory order. An appeal may be taken to the
Commission by the interested parties from the denial of a motion to
quash or from the refusal to issue a subpoena for the production of
documentary evidence.
(e) Order of court upon failure to comply. Upon the failure or
refusal of any person to comply with a subpoena, the Commission may
invoke the aid of the United States District Court within the
jurisdiction of which the hearing, examination or investigation is being
conducted, or wherein that person resides or transacts business, as
provided in 22 U.S.C. 1623(c).
Sec. 501.3 Service of process.
(a) By whom served. The Commission will serve all orders, notices
and other papers issued by it, together with any other papers which it
is required by law to serve.
(b) Kinds of service. Subpoenas, orders, rulings, and other
processes of the Commission may be served by delivering in person, by
registered or certified mail, by overnight express delivery service, by
first class mail, by telegraph, or by publication.
(c) Personal service. Service by delivering in person may be
accomplished by:
(1) Delivering a copy of the document to the person to be served, to
a member of the partnership to be served, to an executive officer or a
director of the corporation to be served, or to a person competent to
accept service; or
(2) By leaving a copy thereof at the residence, principal office or
place of business of the person, partnership, or corporation.
(3) Proof of service. The return receipt for the order, other
process or supporting papers, or the verification by the person serving,
setting forth the manner of service, will be proof of the service of the
document.
(4) Service upon attorney or agent. When any party has appeared by
an authorized attorney or agent, service upon the party's attorney or
agent will be deemed service upon the party.
(d) Service by registered mail or certified mail. Service by
registered mail or certified mail will be regarded as complete on the
date the return post office receipt for the orders, notices and other
papers is received by the Commission.
(e) Service by overnight express delivery service or by first class
mail. Service by overnight express delivery service or first class mail
will be regarded as complete upon deposit, respectively, in the delivery
service's package receptacle or in the United States mail properly
stamped and addressed.
(f) Service by telegraph. Service by telegraph will be regarded as
complete when deposited with a telegraph company properly addressed and
with charges prepaid.
(g) Service by publication. Service by publication is completed when
due notice has been given in the publication for the time and in the
manner provided by law or rule.
(h) Date of service. The date of service is the day upon which the
document is deposited in the United States mail or delivered in person,
as the case may be.
(i) Filing with Commission. Papers required to be filed with the
Commission will be deemed filed upon actual receipt by the Commission
accompanied by proof of service upon parties required to be served. Upon
the actual receipt, the filing will be deemed complete as of the date of
deposit in the mail or with the telegraph company as provided in
paragraphs (e) and (f) of this section.
Sec. 501.4 Witnesses.
(a) Examination of witnesses. Witnesses must appear in person and be
examined orally under oath, except that for good cause shown, testimony
may be taken by deposition.
(b) Witness fees and mileage. Witnesses summoned by the Commission
on its own behalf or on behalf of a claimant or interested party will be
paid the same fees and mileage that are allowed and paid witnesses in
the District Courts of the United States. Witness fees and mileage will
be paid by the Commission or by the party at whose request the witness
appears.
(c) Transcript of testimony. Every person required to attend and
testify will be entitled, upon payment of prescribed
[[Page 10]]
costs, to receive a copy of the recording of the testimony or a
transcript of the recording. Every person required to submit documents
or other evidence will be entitled to retain a copy thereof.
Sec. 501.5 Depositions.
(a) Application to take. (1) An application to take a deposition
must be in writing setting forth the reason why the deposition should be
taken, the name and address of the witness, the matters concerning which
it is expected the witness will testify, and the time and place proposed
for the taking of the deposition, together with the name and address of
the person before whom it is desired that the deposition be taken. If
the deposition is being offered in connection with a hearing or
examination, the application for deposition must be made to the
Commission at least 15 days prior to the proposed date of such hearing
or examination.
(2) Application to take a deposition may be made during a hearing or
examination, or subsequent to a hearing or examination, only where it is
shown for good cause that the facts as set forth in the application to
take the deposition were not within the knowledge of the person signing
the application prior to the time of the hearing or examination.
(3) The Commission or its representative will, upon receipt of the
application and a showing of good cause, make and cause to be served
upon the parties an order which will specify the name of the witness
whose deposition is to be taken, the time, the place, and where
practicable the designation of the officer before whom the witness is to
testify. The officer may or may not be the one specified in the
application. The order will be served upon all parties at least 10 days
prior to the date of the taking of the deposition.
(b) Who may take. The deposition may be taken before the designated
officer or, if none is designated, before any officer authorized to
administer oaths by the laws of the United States. If the examination is
held in a foreign country, it may be taken before a secretary of an
embassy or legation, consul-general, consul, vice consul, or consular
agent of the United States.
(c) Examination and certification of testimony. At the time and
place specified in the Commission's order, the officer taking the
deposition will permit the witness to be examined and cross-examined
under oath by all parties appearing, and the testimony will be reduced
to writing by, or under the direction of, the presiding officer. All
objections to questions or evidence will be deemed waived unless made in
accordance with paragraph (d) of this section. The officer will not have
power to rule upon any objections but will note them upon the
deposition. The testimony must be subscribed by the witness in the
presence of the officer who will attach a certificate stating that the
witness was duly sworn, that the deposition is a true record of the
testimony and exhibits given by the witness and that the officer is not
counsel or attorney to any of the interested parties. The officer will
immediately seal and deliver an original and two copies of the
transcript, together with the officer's certificate, by registered mail
to the Foreign Claims Settlement Commission, Washington, DC 20579 or, if
applicable, to the designated Commission field office.
(d) Admissibility in evidence. The deposition will be admissible in
evidence, subject to such objections to the questions and answers as
were noted at the time of taking the deposition, or within ten (10) days
after the return thereof, and would be valid were the witness personally
present at the hearing.
(e) Errors and irregularities. All errors or irregularities
occurring will be deemed waived unless a motion to suppress the
deposition or some part thereof is made with reasonable promptness after
the defect is, or with due diligence might have been, ascertained.
(f) Scope of use. The deposition of a witness, if relevant, may be
used if the Commission finds:
(1) That the witness has died since the deposition was taken; or
(2) That the witness is at a distance greater than 100 miles radius
of Washington, DC, the designated field office or the designated place
of the hearing; or
[[Page 11]]
(3) That the witness is unable to attend because of other good cause
shown.
(g) Interrogatories and cross-interrogatories. Depositions may also
be taken and submitted on written interrogatories in substantially the
same manner as depositions taken by oral examination. When a deposition
is taken upon interrogatories and cross-interrogatories, none of the
parties may be present or represented, and no person, other than the
witness, the person's representative or attorney, a stenographic
reporter and the presiding officer, may be present at the examination of
the witness, which fact will be certified by the officer, who will read
the interrogatories and cross-interrogatories to the witness in their
order and reduce the testimony to writing in the witness's own words.
(h) Fees. A witness whose deposition is taken pursuant to the
regulations in this part, and the officer taking the deposition, will be
entitled to the same fees and mileage allowed and paid for like service
in the United States District Court for the district in which the
deposition is taken. Such fees will be paid by the Commission or by the
party at whose request the deposition is being taken.
Sec. 501.6 Documentary evidence.
Documentary evidence may consist of books, records, correspondence
or other documents pertinent to any hearing, examination, or
investigation within the jurisdiction of the Commission. The application
for the issuance of subpoenas for production of documents must specify
the books, records, correspondence or other documents sought. The
production of documentary evidence will not be required at any place
other than the witness's place of business. The production of such
documents will not be required at any place if, prior to the return date
specified in the subpoena, the person either has furnished the issuer of
the subpoena with a properly certified copy of the documents or has
entered into a stipulation as to the information contained in the
documents.
Sec. 501.7 Time.
(a) Computation. In computing any period of time prescribed or
allowed by the regulations, by order of the Commission, or by any
applicable statute, the day of the act, event, or default after which
the designated period of time begins to run is not to be included. The
last day of the period so computed is to be included, unless it is a
Saturday, Sunday or legal holiday, in which event the period runs until
the end of the next day that is neither a Saturday, Sunday nor a
holiday. When the period of time prescribed or allowed is less than 7
days, intermediate Saturdays, Sundays and holidays will be excluded in
the computation.
(b) Enlargement. When by the regulations in this chapter, or by a
notice given thereunder or by order of the Commission, an act is
required or allowed to be done at or within a specific time, the
Commission for good cause shown may, at any time in its discretion:
(1) With or without motion, notice, or previous order or
(2) Upon motion, permit the act to be done after the expiration of
the specified period.
PART 502_PUBLIC INFORMATION-FREEDOM OF INFORMATION ACT--Table of Contents
Sec.
502.1 Organization and authority--Foreign Claims Settlement Commission.
502.2 Material to be published in the Federal Register pursuant to the
Freedom of Information Act.
502.3 Effect of nonpublication.
502.4 Incorporation by reference.
502.5 Records generally available.
502.6 Current index.
502.7 Additional documents and records generally available for
inspection and copying.
502.8 Documents on-line.
502.9 Effect of noncompliance.
502.10 Availability of records.
502.11 Actions on requests.
502.12 Appeals.
502.13 Exemptions.
502.14 Fees for services.
Authority: 5 U.S.C. 552.
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
[[Page 12]]
Sec. 502.1 Organization and authority--Foreign Claims Settlement
Commission.
(a) The Foreign Claims Settlement Commission of the United States
(``the Commission'') is an independent agency of the Federal Government
created by Reorganization Plan No. 1 of 1954 (68 Stat. 1279) effective
July 1, 1954. The Commission was transferred to the Department of
Justice as an independent agency within that department as of October 1,
1980, under the terms of Public Law 96-209, approved March 14, 1980 (94
Stat. 96, 22 U.S.C. 1622a). Its duties and authority are defined in the
International Claims Settlement Act of 1949, as amended (64 Stat. 12, 22
U.S.C. 1621-1645o) and the War Claims Act of 1948 (62 Stat. 1240, 50
U.S.C. App. 2001-2017p).
(b) The Commission has jurisdiction to determine the validity and
amount of claims of United States nationals against foreign governments
for compensation for losses and injuries sustained by those nationals,
pursuant to programs authorized under either of the cited Acts. Funds
for payment of claims are derived from international settlement
agreements or through liquidation of foreign assets in the United States
by the Department of Justice or Treasury, or from public funds when
provided by the Congress.
(c) The Chair and the two part-time members of the Commission are
appointed by the President with the advice and consent of the Senate to
serve for 3-year terms of office as provided in 22 U.S.C. 1622c(c).
(d) All functions of the Commission are vested in the Chair with
respect to the internal management of the affairs of the Commission,
including but not limited to:
(1) The appointment of Commission employees;
(2) The direction of Commission employees and the supervision of
their official duties;
(3) The distribution of business among employees and organizational
units within the Commission;
(4) The preparation of budget estimates; and
(5) The use and expenditures of Commission funds appropriated for
expenses of administration.
(e) Requests for records must be made in writing by mail or
presented in person to the Administrative Officer, Foreign Claims
Settlement Commission, Washington, DC 20579.
(f) The offices of the Commission are located at 600 E Street NW
(Bicentennial Building), Room 6002, Washington, DC.
Sec. 502.2 Material to be published in the Federal Register pursuant
to the Freedom of Information Act.
The Commission will separately state and concurrently publish the
following materials in the Federal Register for the guidance of the
public:
(a) Descriptions of its central and field organization and the
established places at which, the officers from whom, and the methods
whereby, the public may secure information, make submittals or requests,
or obtain decisions.
(b) Statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available.
(c) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations.
(d) Substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of general
applicability formulated and adopted by the agency.
(e) Every amendment, revision, or repeal of the foregoing.
Sec. 502.3 Effect of nonpublication.
Except to the extent that a person has actual and timely notice of
the terms thereof, no person will in any manner be required to resort
to, or be adversely affected by, any matter required to be published in
the Federal Register and not so published.
Sec. 502.4 Incorporation by reference.
For purposes of this part, matter which is reasonably available to
the class of persons affected thereby will be deemed published in the
Federal
[[Page 13]]
Register when incorporated by reference therein with the approval of the
Director of the Federal Register.
Sec. 502.5 Records generally available.
The Commission will make promptly available to any member of the
public the following documents:
(a) Proposed and Final Decisions (including dissenting opinions) and
all orders made with respect thereto, except when exempted from public
disclosure by statute;
(b) Statements of policy and interpretations which have been adopted
by the Commission which have not been published in the Federal Register;
and
(c) A current index, which will be updated at least quarterly,
covering the foregoing material adopted, issued or promulgated after
July 4, 1967. Publication of an index is deemed both unnecessary and
impractical. However, copies of the index are available upon request for
a fee of the direct cost of duplication.
Sec. 502.6 Current index.
The Commission will maintain and make available for public
inspection and copying, current indexes providing identifying
information for the public as to any matter issued, adopted, or
promulgated after July 4, 1967, as required by 5 U.S.C. 552(a)(2).
Sec. 502.7 Additional documents and records generally available for
inspection and copying.
The following types of documents are also available for inspection
and copying in the offices of the Commission:
(a) Rules of practice and procedure.
(b) Annual report of the Commission to the Congress of the United
States.
(c) Bound volumes of Commission decisions.
(d) International Claims Settlement Act of 1949, with amendments;
the War Claims Act of 1948, with amendments; and related Acts.
(e) Claims agreements with foreign governments effecting the
settlement of claims under the jurisdiction of the Commission.
(f) Press releases and other miscellaneous material concerning
Commission operations.
(g) Indexes of claims filed in the various claims programs
administered by the Commission.
Sec. 502.8 Documents on-line.
Commission documents available in electronic format may be accessed
via the Commission's World Wide Web site, the address of which is http:/
/www.usdoj.gov/fcsc.
Sec. 502.9 Effect of non-compliance.
No decision, statement of policy, interpretation, or staff manual or
instruction that affects any member of the public will be relied upon,
used, or cited as precedent by the Commission against any private party
unless it has been indexed and either made available or published as
provided by this part, or unless that private party has actual and
timely notice of the terms thereof.
Sec. 502.10 Availability of records.
(a) Each person desiring access to a record covered by this part
must comply with the following provisions:
(1) A written request must be made for the record.
(2) Such request must indicate that it is being made under the
Freedom of Information Act.
(3) The envelope in which the request is sent must be prominently
marked with the letters ``FOIA.''
(4) The request must be addressed to the appropriate official or
employee of the Commission as set forth in paragraph (c) of this
section.
(5) The foregoing requirements must be complied with whether the
request is mailed or hand-delivered to the Commission.
(b) If the requirements of paragraph (a) of this section are not
met, the twenty-day time limit described in Sec. 502.10(a) will not
begin to run until the request has been identified by an official or
employee of the Commission as a request under the Freedom of Information
Act and has been received by the appropriate official or employee of the
Commission.
(c) Each person desiring access to a record covered in this part
that is located in the Commission, or to obtain a copy of such a record,
must make a written request to the Administrative Officer, Foreign
Claims Settlement
[[Page 14]]
Commission, 600 E Street NW, Room 6002, Washington, DC 20579.
(d) Each request should reasonably describe the particular record
requested. The request should specify the subject matter, the date when
it was made and the person or office that made it. If the description is
insufficient, the official or employee handling the request may notify
the person making the request and, to the extent possible, indicate the
additional data required.
(e) Each record made available under this section is available for
inspection and copying during regular working hours. Original documents
may be copied but may not be released from custody.
(f) Authority to administer this part in connection with Commission
records is delegated to the Administrative Officer or the Commission
employee acting in that official's capacity.
Sec. 502.11 Actions on requests.
(a) The Administrative Officer or any employee acting in that
official's capacity will determine within twenty days (excepting
Saturdays, Sundays, and legal public holidays) after the receipt of any
a request whether to comply with the request. Upon receipt of a request
for a Commission record which is available, the Administrative Officer
or other employee will notify the requester as to the time the record is
available, and will promptly make the record available after advising
the requester of the applicable fees under Sec. 502.13. The person
making the request will be notified immediately after any adverse
determination, the reasons for making the adverse determination and the
right of the person to appeal.
(b) Any denial of a request for a record will be written and signed
by the Administrative Officer or other employee, including a statement
of the reason for denial. That statement will contain, as applicable:
(1) A reference to the specific exemption under the Freedom of
Information Act authorizing the withholding of a record, and to the
extent consistent with the purpose of the exemption, an explanation of
how the exemption applies to the record withheld.
(2) If a record requested does not exist, or has been legally
disposed of, the requester will be so notified.
(c) In unusual circumstances, the time limit prescribed in paragraph
(a) of this section may be extended by written notice to the person
making the request setting forth the reasons for the extension and the
date on which a determination is expected to be dispatched. No extension
notice will specify a date that would result in an extension for more
than twenty working days. As used in this paragraph, ``unusual
circumstances'' means, but only to the extent reasonably necessary to
the proper processing of the particular request--
(1) The need to search for and collect the requested records from
other establishments that are separate from the office processing the
request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(3) The need for consultation, which will be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
Sec. 502.12 Appeals.
(a) Any person to whom a record has not been made available within
the time limits established by paragraph (b) of Sec. 502.11, and any
person who has been given an adverse determination pursuant to paragraph
(b) of Sec. 503.10 of this chapter, that a requested record will not be
disclosed, may apply to the Office of Information and Privacy, U.S.
Department of Justice, Washington, DC 20530, for reconsideration of the
request. The person making such a request will also be notified of the
provisions for judicial review provided in 5 U.S.C. 552(a)(4).
(b) Each application for reconsideration must be made in writing
within sixty days from the date of receipt of the original denial and
must include all information and arguments relied upon by the person
making the request. The application must indicate that it is an
[[Page 15]]
appeal from a denial of a request made under the Freedom of Information
Act. The envelope in which the application is sent must be prominently
marked with the letters ``FOIA.'' If these requirements are not met, the
twenty day limit described in Sec. 502.10 will not begin to run until
the application has been identified as an application under the Freedom
of Information Act and has been received by the Office of Information
and Privacy of the Department of Justice.
(c) Whenever it is to be determined necessary, the person making the
request may be required to furnish additional information, or proof of
factual allegations and other proceedings appropriate in the
circumstances may be ordered.
(d) The decision not to disclose a record under this part is
considered to be a withholding for the purposes of 5 U.S.C. 552(a)(3).
Sec. 502.13 Exemptions.
In the event any document or record requested hereunder should
contain material which is exempt from disclosure under this section, any
reasonably segregable portion of the record will, notwithstanding that
fact, and to the extent feasible, be provided to any person requesting
it, after deletion of the portions which are exempt under this section.
Documents or records determined to be exempt from disclosure hereunder
may nonetheless be provided upon request in the event it is determined
that the provision of the document would not violate the public interest
or the right of any person to whom the information may pertain, and the
disclosure is not prohibited by law or Executive Order. The following
categories of records are exempt from disclosure under the provisions of
5 U.S.C. 552(b):
(a) Records which are specifically required by Executive Order to be
kept secret in the interest of national defense or foreign policy and
are in fact properly classified pursuant to such Executive Order. This
exception may apply to records in the custody of the Commission which
have been transmitted to the Commission by another agency which has
designated the record as nonpublic under Executive Order.
(b) Records related solely to the internal personnel rules and
practices of the Commission.
(c) Records specifically exempted from disclosure by statute.
(d) Information given in confidence. This includes information
obtained by or given to the Commission which constitutes confidential
commercial or financial information, privileged information, or other
information which was given to the Commission in confidence or would not
customarily be released by the person from whom it was obtained.
(e) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a private party in litigation with the
Commission. Such communications include inter-agency memoranda, drafts,
staff memoranda transmitted to the Commission, written communications
between the Commission and its staff regarding the preparation of
Commission decisions, other documents received or generated in the
process of issuing a decision or regulation, and reports and other work
papers of staff attorneys, accountants, and investigators.
(f) Personnel and medical files and similar files, the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy.
(g) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(1) Could reasonably be expected to interfere with enforcement
proceedings;
(2) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(3) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(4) Could reasonably be expected to disclose the identity of a
confidential source, including a state, local or foreign agency or
authority or any private institution which furnished information on a
confidential basis and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency
[[Page 16]]
conducting a lawful security intelligence investigation, information
furnished by a confidential source;
(5) Would disclose techniques and procedures for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law; or
(6) Could reasonably be expected to endanger the life or physical
safety of any individual.
Sec. 502.14 Fees for services.
The following provisions shall apply in the assessment and
collection of fees for services rendered in processing requests for
disclosure of Commission records under this part.
(a) Fee for duplication of records: $0.15 per page.
(b) Search and review fees:
(1) Searches for records by clerical personnel--$3.00 per quarter
hour, including time spent searching for and copying any record.
(2) Search for and review of records by professional and supervisory
personnel--$6.00 per quarter hour spent searching for any record or
reviewing a record to determine whether it may be disclosed, including
time spent in copying any record.
(c) Certification and validation fee: $1.00 for each certification,
validation or authentication of a copy of any record.
(d) Imposition of fees:
(1) Commercial use requests--Where a request appears to seek
disclosure of records for a commercial use, the requester shall be
charged for the time spent by Commission personnel in searching for the
requested record and in reviewing the record to determine whether it
should be disclosed, and for the cost of each page of duplication.
Commercial use is defined as a use or purpose that furthers the
commercial, trade or profit interests of the requester or the person on
whose behalf the request is made. The request also must reasonably
identify the records sought.
(2) Requests from representatives of news media--Where a request
seeks disclosure of records to a representative of the news media, the
requester shall be charged only for the actual duplication cost of the
records and only to the extent that the number of duplications exceeds
100 pages; provided, however, that the request must reasonably describe
the records sought, and it must appear that the records are for use by
the requester in such person's capacity as a news media representative.
``Representative of the news media'' refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that is
about current events or that would be of current interest to the public.
A ``freelance'' journalist not actually employed by a news organization
shall be eligible for inclusion under this category if the person can
demonstrate a solid basis for expecting publication by a news
organization.
(3) Requests from educational and non-commercial scientific
institutions--Where a request seeks disclosure of records to an
educational or non-commercial scientific institution, the requester
shall be charged only for the actual duplication cost of the records and
only to the extent that the number of duplications exceeds 100 pages;
provided, however, that the request must reasonably describe the records
sought and it must appear that the records are to be used by the
requester in furtherance of its educational or non-commercial scientific
research programs. ``Educational institution'' refers to a preschool, a
public or private elementary or secondary school, or an institution of
undergraduate, graduate, professional or vocational education, which
operates a program or programs of scholarly research. ``Non-commercial
scientific institution'' refers to an institution that is not operated
on a ``commercial'' basis, within the meaning of paragraph (d)(1) of
this section and which is operated solely for the purpose of conducting
scientific research, the results of which are not intended to promote
any particular product or industry.
(4) All other requests--Where a request seeks disclosure of records
to a person or entity other than one coming within paragraphs (d) (1),
(2) and (3) of this section, the requester shall be charged the full
cost of search and duplication. However, the first two hours of search
time and the first 100 pages of
[[Page 17]]
duplication shall be furnished without charge.
(e) Aggregating of requests. If there exists a solid basis for
concluding that a requester or group of requesters has submitted a
series of partial requests for disclosure of records in an attempt to
evade assessment of fees, the requests may be aggregated so as to
constitute a single request, with fees charged accordingly.
(f) Unsuccessful searches. Except as provided in paragraph (d) of
this section, the cost of searching for a requested record shall be
charged even if the search fails to locate the record or it is
determined that the record is exempt from disclosure.
(g) Interest. In the event a requester fails to remit payment of
fees charged for processing a request under this part within 30 days
from the date those fees were billed, interest on the fees may be
assessed beginning on the 31st day after the billing date, to be
calculated at the rate prescribed in 31 U.S.C. 3717.
(h) Advance payments. (1) If, but only if, it is estimated or
determined that processing of a request for disclosure of records will
result in a charge of fees of more than $250.00, the requester may be
required to pay the fees in advance in order to obtain completion of the
processing.
(2) If a requester has previously failed to make timely payment
(i.e., within 30 days of billing date) of fees charged under this part,
the requester may be required to pay those fees and interest accrued
thereon, and to make an advance payment of the full amount of estimated
fees chargeable in connection with any pending or new request, in order
to obtain processing of the pending or new request.
(3) With regard to any request coming within paragraphs (h) (1) and
(2) of this section, the administrative time limits set forth in
Sec. Sec. 502.11 and 502.12 of this part will begin to run only after
the requisite fee payments have been received.
(i) Non-payment. In the event of non-payment of billed charges for
disclosure of records, the provisions of the Debt Collection Act of 1982
(Pub. L. 97-365), including disclosure to consumer credit reporting
agencies and referral to collection agencies, may be utilized to obtain
payment.
(j) Waiver or reduction of charges. Fees otherwise chargeable in
connection with a request for disclosure of a record shall be waived or
reduced where--
(1) It is determined that disclosure is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not primarily
in the commercial interest of the requester; or
(2) It is determined that the cost of collection would be equal to
or exceed the amount of those fees. No charges shall be assessed if the
fees amount to $8.00 or less.
PART 503_PRIVACY ACT AND GOVERNMENT IN THE SUNSHINE REGULATIONS--Table
of Contents
Subpart A_Privacy Act Regulations
Sec.
503.1 Definitions--Privacy Act.
503.2 General policies--Privacy Act.
503.3 Conditions of disclosure.
503.4 Accounting of certain disclosures.
503.5 Access to records or information.
503.6 Determination of requests for access to records.
503.7 Amendment of a record.
503.8 Appeals from denial of requests for amendment to records.
503.9 Fees.
503.10 Exemptions.
503.11 Reports.
503.12 Notices.
Subpart B_Government in the Sunshine Regulations
503.20 Definitions.
503.21 Notice of public observation.
503.22 Scope of application.
503.23 Open meetings.
503.24 Grounds for closing a meeting.
503.25 Announcement of meetings.
503.26 Procedures for closing of meetings.
503.27 Reconsideration of opening or closing, or rescheduling a meeting.
503.28 Record of closed meetings, or closed portion of a meeting.
503.29 Requests for information.
Authority: 5 U.S.C. 552a(f).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
[[Page 18]]
Subpart A_Privacy Act Regulations
Sec. 503.1 Definitions--Privacy Act.
For the purpose of this part:
Agency includes any executive department, military department,
government corporation, government controlled corporation, or other
establishment in the executive branch of the government (including the
Executive Office of the President) or any independent regulatory agency.
The Foreign Claims Settlement Commission (``Commission'') is an agency
within the meaning of the term.
Individual means a citizen of the United States or an alien lawfully
admitted for permanent residence.
Maintain includes maintain, collect, use or disseminate.
Record means any item, collection, or grouping of information about
an individual that is maintained by an agency, including, but not
limited to, an individual's education, financial transactions, medical
history, and criminal or employment history, and that contains an
individual's name, or the identifying number, symbol, or other
identifying particular assigned to the individual, such as a finger or
voice print or a photograph.
Routine use means, with respect to the disclosure of a record, the
use of that record for a purpose which is compatible with the purpose
for which it was collected.
Statistical record means a record in a system of records maintained
for statistical research or reporting purposes only and not used in
whole or in part in making any determination about an identifiable
individual except as provided by section 13 U.S.C. 8.
System of records means a group of any records under the control of
any agency from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual.
Sec. 503.2 General policies--Privacy Act.
The Commission will protect the privacy of an individual identified
in any information or record systems which it maintains. Accordingly,
its officials and employees, except as otherwise provided by law or
regulation, will:
(a) Permit an individual to determine what records pertaining to
that individual are collected, maintained, used or disseminated by the
Commission.
(b) Permit an individual to prevent a record pertaining to that
individual obtained by the Commission for a particular purpose from
being used or made available for another purpose without the
individual's consent.
(c) Permit an individual to gain access to information pertaining to
that individual in Commission records, to have a copy made of all or any
portion thereof, and to correct or amend those records.
(d) Collect, maintain, use, or disseminate any record of
identifiable personal information in a manner that assures that the
Commission's action is for a necessary and lawful purpose, that the
information is current and accurate for its intended use, and that
adequate safeguards are provided to prevent misuse of the information.
(e) Permit exemptions from record requirements provided under the
Privacy Act only where an important public policy use for the exemption
has been determined in accordance with specific statutory authority.
Sec. 503.3 Conditions of disclosure.
The Commission will not disclose any record contained in a system of
records by any means of communication to any person or any other agency
except by written request of or prior written consent of the individual
to whom the record pertains unless the disclosure is:
(a) To those officers and employees of the Commission who have a
need for the record in the performance of their duties;
(b) Required under the Freedom of Information Act, 5 U.S.C. 552;
(c) For a routine use;
(d) To the Bureau of Census for purposes of planning or carrying out
a census or survey or related activity under the provisions of Title 13,
United States Code;
(e) To a recipient who has provided the Commission with adequate
advance assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be
[[Page 19]]
transferred in a form that is not individually identifiable;
(f) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States Government or for evaluation to
determine whether the record has that value;
(g) To another agency or to an instrumentality of any government
jurisdiction within or under control of the United States for a civil or
criminal law enforcement activity authorized by law, provided the head
of the agency or instrumentality has made a prior written request to the
Commission, specifying the particular record and the law enforcement
activity for which it is sought;
(h) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if, upon disclosure,
notification is transmitted to the last known address of the individual;
(i) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of the joint committee;
(j) To the Comptroller General, or any of that official's authorized
representatives, in the course of the performance of the duties of the
General Accounting Office; or
(k) Pursuant to the order of a court of competent jurisdiction.
Sec. 503.4 Accounting of certain disclosures.
(a) Except for disclosures under Sec. 503.3(a) and (b) of this
part, the Administrative Officer will keep an accurate accounting of
each disclosure of a record to any person or to another agency made
under Sec. 503.3(c), (d), (e), (f), (g), (h), (i), (j), and (k) of this
part.
(b) Except for a disclosure made to another agency or to an
instrumentality of any governmental jurisdiction under Sec. 503.3(g) of
this part, the Administrative Officer will make the accounting as
required under paragraph (a) of this section available to any individual
upon written request made in accordance with Sec. 503.5.
(c) The Administrative Officer will inform any person or other
agency about any correction or notation of dispute made in accordance
with Sec. 503.7 of this part of any record that has been disclosed to
the person or agency if an accounting of the disclosure was made.
(d) An accounting of disclosures of records within this section will
consist of the date, nature, the purpose of each disclosure of a record
to any person or to another agency, and the name and address of the
person or agency to whom the disclosure is made.
(e) This accounting shall be retained for 5 years or the life of the
record, whichever is longer, after the disclosure for which the
accounting is made.
Sec. 503.5 Access to records or information.
(a) Upon request in person or by mail, any individual will be
informed whether or not a system of records maintained by the Commission
contains a record or information pertaining to that individual.
(b) Any individual requesting access to a record or information in
person must appear in person at the offices of the Foreign Claims
Settlement Commission, 600 E Street, NW., Room 6002, Washington, DC,
between the hours of 9 a.m. and 5:30 p.m., Monday through Friday, and
(1) Provide information sufficient to identify the record, e.g., the
individual's own name, claim and decision number, date and place of
birth, etc.;
(2) Provide identification sufficient to verify the individual's
identity, e.g., driver's license, identification or Medicare card; and
(3) Any individual requesting access to records or information
pertaining to himself or herself may be accompanied by a person of the
individual's own choosing while reviewing the records or information. If
an individual elects to be so accompanied, advance notification of the
election will be required along with a written statement authorizing
disclosure and discussion of the record in the presence of the
accompanying person at any time, including the time access is granted.
(c) Any individual making a request for access to records or
information pertaining to himself or herself by mail
[[Page 20]]
must address the request to the Administrative Officer (Privacy
Officer), Foreign Claims Settlement Commission, 600 E Street, NW., Room
6002, Washington, DC 20579, and must provide information acceptable to
the Administrative Officer to verify the individual's identity.
(d) Responses to requests under this section normally will be made
within ten (10) days of receipt (excluding Saturdays, Sundays, and legal
holidays). If it is not possible to respond to requests within that
period, an acknowledgment will be sent to the individual within ten (10)
days of receipt of the request (excluding Saturdays, Sundays, and legal
holidays).
Sec. 503.6 Determination of requests for access to records.
(a) Upon request made in accordance with Sec. 503.5, the
Administrative Officer will:
(1) Determine whether or not the request will be granted;
(2) Make that determination and provide notification within a
reasonable period of time after receipt of the request.
(b) If access to a record is denied because information has been
compiled by the Commission in reasonable anticipation of a civil or
criminal action or proceeding, the Administrative Officer will notify
the individual of that determination and the reason therefor.
(c) If access to the record is granted, the individual making the
request must notify the Administrative Officer whether the record
requested is to be copied and mailed to the individual.
(d) If a record is to be made available for personal inspection, the
individual must arrange with the Administrative Officer a mutually
agreeable time and place for inspection of the record.
Sec. 503.7 Amendment of a record.
(a) Any individual may request amendment of a record pertaining to
himself or herself according to the procedure in paragraph (b) of this
section, except in the case of records described under paragraph (d) of
this section.
(b) After inspection by an individual of a record pertaining to
himself or herself, the individual may file a written request, presented
in person or by mail, with the Administrative Officer, for an amendment
to a record. The request must specify the particular portions of the
record to be amended, the desired amendments and the reasons therefor.
(c) Not later than ten (10) days (excluding Saturdays, Sundays, and
legal holidays) after the receipt of a request made in accordance with
this section to amend a record in whole or in part, the Administrative
Officer will:
(1) Make any correction of any portion of the record which the
individual believes is not accurate, relevant, timely or complete and
thereafter inform the individual of such correction; or
(2) Inform the individual, by certified mail return receipt
requested, of the refusal to amend the record, setting forth the reasons
therefor, and notify the individual of the right to appeal that
determination as provided under Sec. 503.8 of this part.
(d) The provisions for amending records do not apply to evidence
presented in the course of Commission proceedings in the adjudication of
claims, nor do they permit collateral attack upon what has already been
subject to final agency action in the adjudication of claims in programs
previously completed by the Commission pursuant to statutory time
limitations.
Sec. 503.8 Appeals from denial of requests for amendment to records.
(a) An individual whose request for amendment of a record pertaining
to the individual is denied may request a review of that determination.
The request must be addressed to the Chair of the Commission, and must
specify the reasons for which the refusal to amend is challenged.
(b) If on appeal the refusal to amend the record is upheld, the
Commission will permit the individual to file a statement setting forth
the reasons for disagreement with the determination. The statement must
also be submitted within 30 days of receipt of the denial. The statement
will be included in the system of records in which the disputed record
is maintained and will be marked so as to indicate:
[[Page 21]]
(1) That a statement of disagreement has been filed, and
(2) Where in the system of records the statement may be found.
Sec. 503.9 Fees.
Fees to be charged, if any, to any individual for making copies of
that individual's record excluding the cost of any search for and review
of the record will be as follows:
(a) Photocopy reproductions: each copy $0.15.
(b) Where the Commission undertakes to perform for a requester, or
any other person, services which are clearly not required to be
performed under the Privacy Act, either voluntarily or because those
services are required by some other law, the question of charging fees
for those services will be determined by the official or designee
authorized to release the information, under the Federal user charge
statute, 31 U.S.C. 583a, any other applicable law, and the provisions of
Sec. 502.13 of part 502 of this chapter.
Sec. 503.10 Exemptions.
No system of records maintained by the Foreign Claims Settlement
Commission is exempt from the provisions of 5 U.S.C. 552a as permitted
under certain conditions by 5 U.S.C. 552a(j) and (k). However, the Chair
of the Commission reserves the right to promulgate rules in accordance
with the requirements of 5 U.S.C. 553(b)(1), (2) and (3), and 5 U.S.C.
553(c) and (e) to exempt any system of records maintained by the
Commission in accordance with the provisions of 5 U.S.C. 552a(k).
Sec. 503.11 Reports.
(a) The Administrative Officer or designee will provide adequate
advance notice to Congress and the Office of Management and Budget of
any proposal to establish or alter any Commission system of records, as
required by 5 U.S.C. 552a(o).
(b) If at any time a system of records maintained by the Commission
is determined to be exempt from the application of 5 U.S.C. 552a in
accordance with the provisions of 5 U.S.C. 552a(j) and (k), the number
of records contained in such system will be separately listed and
reported to the Office of Management and Budget.
Sec. 503.12 Notices.
The Commission will publish in the Federal Register at least
annually a notice of the existence and character of the systems of
records which it maintains. Such notice will include:
(a) The name and location of each system;
(b) The categories of individuals on whom the records are maintained
in each system;
(c) The categories of records maintained in each system;
(d) Each routine use of the records contained in each system
including the categories of users and the purpose of each use;
(e) The policies and practices of the Commission regarding storage,
retrievability, access controls, retention, and disposal of the records;
(f) The title and business address of the agency official who is
responsible for each system of records;
(g) Commission procedures whereby an individual can be notified if a
system of records contains a record pertaining to that individual;
(h) Commission procedures whereby an individual can be notified how
to gain access to any record pertaining to that individual contained in
a system of records, and how to contest its content, and
(i) The categories of sources of records in each system.
Subpart B_Government in the Sunshine Regulations
Authority: 5 U.S.C. 552b.
Sec. 503.20 Definitions.
For purposes of this part: Closed meeting and closed portion of a
meeting mean, respectively, a meeting or that part of a meeting
designated as provided in Sec. 503.27 as closed to the public by reason
of one or more of the closure provisions listed in Sec. 503.24.
Commission means the Foreign Claims Settlement Commission, which is
a collegial body that functions as a unit composed of three individual
members, appointed by the President with the advice and consent of the
Senate.
[[Page 22]]
Meeting means the deliberations of at least two (quorum) members of
the Commission where such deliberations determine or result in joint
conduct or disposition of official Commission business.
Member means any one of the three members of the Commission.
Open meeting means a meeting or portion of a meeting which is not a
closed meeting or a closed portion of a meeting.
Public observation means the right of any member of the public to
attend and observe, but not participate or interfere in any way, in an
open meeting of the Commission within the limits of reasonable and
comfortable accommodations made available for such purpose by the
Commission.
Sec. 503.21 Notice of public observation.
(a) A member of the public is not required to give advance notice of
an intention to exercise the right of public observation of an open
meeting of the Commission. However, in order to permit the Commission to
determine the amount of space and number of seats which must be made
available to accommodate individuals who desire to exercise the right of
public observation, those individuals are requested to give notice to
the Commission at least two business days before the start of the open
meeting of the intention to exercise that right.
(b) Notice of intention to exercise the right of public observation
may be given in writing, in person, or by telephone to the official
designated in Sec. 503.29.
(c) Individuals who have not given advance notice of intention to
exercise the right of public observation will not be permitted to attend
and observe the open meeting of the Commission if the available space
and seating are necessary to accommodate individuals who gave advance
notice of such intention.
Sec. 503.22 Scope of application.
The provisions of this part 503, Sec. Sec. 503.20 through 503.29,
apply to meetings of the Commission, and do not apply to conferences or
other gatherings of employees of the Commission who meet or join with
others, except at meetings of the Commission to deliberate on or conduct
official agency business.
Sec. 503.23 Open meetings.
Every meeting of the Commission will be open to public observation
except as provided in Sec. 503.24.
Sec. 503.24 Grounds for closing a meeting.
(a) Except in a case where the Commission determines otherwise, a
meeting or portion of a meeting may be closed to public observation
where the Commission determines that the meeting or portion of the
meeting is likely to:
(1) Disclose matters that are:
(i) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interests of national defense
or foreign policy and
(ii) In fact properly classified pursuant to such Executive order;
(2) Relate solely to the internal personnel rules and practices of
the Commission;
(3) Disclose matters specifically exempted from disclosure by
statute (other than 5 U.S.C. 552) provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Disclose trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
(5) Involve accusing any person of a crime, or formally censuring
any person;
(6) Disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy;
(7) Disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of the records or
information would:
(i) Interfere with enforcement proceedings,
(ii) Deprive a person of a right to a fair trial or an impartial
adjudication,
[[Page 23]]
(iii) Constitute an unwarranted invasion of personal privacy,
(iv) Disclose the identity of a confidential source and, in the case
of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source,
(v) Disclose investigative techniques and procedures, or
(vi) Endanger the life or physical safety of law enforcement
personnel;
(8) Disclose information contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of the Commission;
(9) Disclose information the premature disclosure of which would be
likely to significantly frustrate implementation of a proposed action of
the Commission, provided the Commission has not already disclosed to the
public the content or nature of its proposed action, or is not required
by law to make the disclosure on its own initiative prior to taking
final action on the proposal; or
(10) Specifically concern the Commission's issuance of a subpoena or
the Commission's participation in a civil action or proceeding, an
action in a foreign court or international tribunal, or an arbitration,
or the initiation, conduct, or disposition by the Commission of a
particular case of formal agency adjudication pursuant to the procedures
in 5 U.S.C. 554, or otherwise involve a determination on the record
after opportunity for a hearing.
(b) If the Commission determines that the public interest would
require that a meeting to be open, it may nevertheless so hold.
Sec. 503.25 Announcement of meetings.
(a) The Commission meets in its offices at 600 E Street, NW,
Washington, DC, from time to time as announced by timely notice
published in the Federal Register.
(b) At the earliest practicable time, which is estimated to be not
later than eight days before the beginning of a meeting of the
Commission, the Commission will make available for public inspection in
its offices, and, if requested, will furnish by telephone or in writing,
a notice of the subject matter of the meeting, except to the extent that
the information is exempt from disclosure under the provisions of Sec.
503.24.
Sec. 503.26 Procedures for closing of meetings.
(a) The closing of a meeting will occur when:
(1) A majority of the membership of the Commission votes to take
that action. A separate vote of the Commission members will be taken
with respect to each Commission meeting, a portion or portions of which
are proposed to be closed to the public pursuant to Sec. 503.24, or
with respect to any information which is proposed withheld under Sec.
503.24. A single vote may be taken with respect to a series of meetings,
a portion or portions of which are proposed to be closed to the public,
or with respect to any information concerning that series of meetings,
so long as each meeting in the series involves the same particular
matters and is scheduled to be held no more than thirty days after the
initial meeting in the series. The vote of each Commission member
participating in the voting will be recorded and no proxies will be
allowed.
(2) Whenever any person whose interests may be directly affected by
a portion of a meeting requests that the Commission close that portion
to the public for any of the reasons referred to in Sec. 503.24(e),
(f), or (g), the Commission, upon request of any one of its Commission
members, will take a recorded vote, whether to close that portion of the
meeting.
(b) Within one day of any vote taken, the Commission will make
publicly available a written copy of the voting reflecting the vote of
each member on the question and a full written explanation of its action
closing the entire or portion of the meeting together with a list of all
persons expected to attend the meeting and their affiliation.
(c) The Commission will announce the time, place and subject matter
of the meeting at least eight days before the meeting.
[[Page 24]]
(d) For every closed meeting, before the meeting is closed, the
Commission's Chair will publicly certify that the meeting may be closed
to the public, and will state each relevant closure provision. A copy of
the certification, together with a statement setting forth the time and
place of the meeting, and the persons present, will be retained by the
Commission.
Sec. 503.27 Reconsideration of opening or closing, or rescheduling a
meeting.
The time or place of a Commission meeting may be changed following
the public announcement only if the Commission publicly announces such
changes at the earliest practicable time. The subject matter of a
meeting, or the determination of the Commission to open or close a
meeting, or portion of a meeting, to the public, may be changed
following the public announcement only if a majority of the Commission
members determines by a recorded vote that Commission business so
requires and that no earlier announcement of the changes was possible,
and the Commission publicly announces the changes and the vote of each
member upon the changes at the earliest practicable time.
Sec. 503.28 Record of closed meetings, or closed portion of a meeting.
(a) The Commission will maintain a complete transcript or electronic
recording adequate to record fully the proceedings of each closed
meeting or closed portion of a meeting, except that in the case of a
meeting or portion of a meeting closed to the public pursuant to Sec.
503.24(d), (h), or (j), the Commission will maintain either a transcript
or recording, or a detailed set of minutes.
(b) Any minutes so maintained will fully and clearly describe all
matters discussed and shall provide a full and accurate summary of any
actions taken, and the reasons therefor, including a description of each
of the views expressed on any item and the record of any rollcall vote.
All documents considered in connection with any action will be
identified in the minutes.
(c) The Commission will promptly make available to the public, in
its offices, the transcript, electronic recording, or minutes, of the
discussion of any item on the agenda of a closed meeting, or closed
portion of a meeting, except for the item or items of discussion which
the Commission determines to contain information which may be withheld
under Sec. 503.24. Copies of the transcript or minutes, or a
transcription of the recording, disclosing the identity of each speaker,
will be furnished to any person at the actual cost of duplication or
transcription.
(d) The Commission will maintain a complete verbatim copy of the
transcript, a complete copy of the minutes, or a complete electronic
recording of each closed meeting or closed portion of a meeting for a
period of two years after the date of the closed meeting or closed
portion of a meeting.
(e) All actions required or permitted by this section to be
undertaken by the Commission will be by or under the authority of the
Chair of the Commission.
Sec. 503.29 Requests for information.
Requests to the Commission for information about the time, place,
and subject matter of a meeting, whether it or any portions thereof are
closed to the public, and any requests for copies of the transcript or
minutes or of a transcript of an electronic recording of a closed
meeting, or closed portion of a meeting, to the extent not exempt from
disclosure by the provisions of Sec. 503.24, must be addressed to the
Administrative Officer, Foreign Claims Settlement Commission, 600 E
Street, NW, Room 6002, Washington, DC 20579, telephone (202) 616-6975.
[[Page 25]]
SUBCHAPTER B_RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER TITLE
I OF THE WAR CLAIMS ACT OF 1948, AS AMENDED
PART 504_FILING OF CLAIMS AND PROCEDURES THEREFOR--Table of Contents
Sec.
504.1 Claim defined.
504.2 Time within which claims may be filed.
504.3 Official claim forms.
504.4 Place of filing claims.
504.5 Documents to accompany forms.
504.6 Receipt of claims.
Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C.
App. 2001).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 504.1 Claim defined.
(a) This subchapter is included solely in order to provide for the
adjudication of any additional claims that may arise on behalf of
survivors of deceased civilians and military veterans who had been
listed as missing during the Vietnam conflict but were subsequently
determined to have been interned, in hiding, or captured by a hostile
force in Southeast Asia (see Sec. 504.2(a)(3) and (b)(3)). The
Commission no longer has authority to receive or consider any other
types of claims based on the internment of civilians or the maltreatment
of military servicemen held as prisoners of war by forces hostile to the
United States.
(b) A properly completed and executed application made on an
official form provided by the Foreign Claims Settlement Commission for
such purpose constitutes a claim and will be processed under the laws
administered by the Commission.
(c) Any communication, letter, note, or memorandum from a claimant,
or the claimant's duly authorized representative, or a person acting as
next friend of a claimant who is not legally competent, setting forth
sufficient facts to apprise the Commission of an interest to apply under
the provisions of sections 5(i) and 6(f) of the Act, will be deemed to
be an informal claim. Where an informal claim is received and an
official form is forwarded for completion and execution by the
applicant, that official form will be considered as evidence necessary
to complete the initial claim, and unless that official form is received
within thirty (30) days from the date it was transmitted for execution,
if the claimant resides in the continental United States, or forty-five
(45) days if outside the continental United States, the claim may be
disallowed.
Sec. 504.2 Time within which claims may be filed.
(a) Claims of individuals entitled to benefits under section 5(i) of
the War Claims Act of 1948, as added by Public Law 91-289, will be
accepted by the Commission during the period beginning June 24, 1970,
and ending:
(1) June 24, 1973, inclusive;
(2) 3 years from the date the civilian American citizen by whom the
claim is filed returned to the jurisdiction of the United States; or
(3) 3 years from the date upon which the Commission, at the request
of a potentially eligible survivor, makes a determination that the
civilian American citizen has actually died or may be presumed to be
dead, in the case of any civilian American citizen who has not returned
to the jurisdiction of the United States, whichever of the preceding
dates last occurs.
(b) Claims of individuals entitled to benefits under section 6(f) of
the War Claims Act of 1948, as added by Public Law 91-289, will be
accepted by the Commission during the period beginning June 24, 1970,
and ending:
(1) June 24, 1973, inclusive;
(2) 3 years from the date the prisoner of war by whom the claim is
filed returned to the jurisdiction of the Armed Forces of the United
States; or
(3) 3 years from the date the Department of Defense makes a
determination that the prisoner of war has actually died or is presumed
to be dead, in the case of any prisoner of war who has not returned to
the jurisdiction of the Armed Forces of the United States,
[[Page 26]]
whichever of the preceding dates last occurs.
Sec. 504.3 Official claim forms.
Official forms are provided for use in the preparation of claims for
submission to the Commission for processing. Claim forms are available
at the Washington offices of the Commission and through other offices as
the Commission may designate. The official claim form for all claims
under section 5(i) and 6(f) has been designated FCSC Form 289,
``Application for Compensation for Members of the Armed Forces of the
United States Held as Prisoner of War in Vietnam; for Persons Assigned
to Duty on board the `U.S.S. Pueblo' Captured by Military Forces of
North Korea; for Civilian American Citizens Captured or Who Went into
Hiding to Avoid Capture or Internment in Southeast Asia During the
Vietnam Conflict and, in Case of Death of any Such Person, for Their
Survivors.''
Sec. 504.4 Place of filing claims.
Claims must be mailed or delivered in person to the Foreign Claims
Settlement Commission, 600 E Street, NW, Room 6002, Washington, DC
20579.
Sec. 504.5 Documents to accompany forms.
All claims filed pursuant to sections 5(a) and 6(f) of the Act must
be accompanied by evidentiary documents, instruments, and records as
outlined in the instruction sheet attached to the claim form.
Sec. 504.6 Receipt of claims.
(a) Claims deemed received. A claim will be deemed to have been
received by the Commission on the date postmarked, if mailed, or if
delivery is made in person, on the date of delivery at the offices of
the Commission in Washington, DC.
(b) Claims developed. In the event that a claim has been
insufficiently prepared so as to preclude processing thereof, the
Commission may request the claimant to furnish whatever supplemental
evidence, including the completion and execution of an official claim
form, as may be essential to the processing of the claim. In case the
evidence or official claim form requested is not returned within the
time which may be designated by the Commission, the claim may be deemed
to have been abandoned and may be disallowed.
PART 505_PROVISIONS OF GENERAL APPLICATION--Table of Contents
Sec.
505.1 Persons eligible to file claims.
505.2 Persons under legal disability.
505.3 Definitions applicable under the Act.
Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C.
App. 2001).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 505.1 Persons eligible to file claims.
Persons eligible to file claims with the Commission under the
provisions of sections 5(i) and 6(f) of the War Claims Act of 1948, as
amended, are:
(a) Civilian American citizens captured and held in Southeast Asia
or their eligible survivors, under the provisions of section 5(i) of the
Act; and
(b) Members of the Armed Forces of the United States held as
prisoners of war during the Vietnam conflict or their eligible
survivors, under section 6(f) of the Act.
Sec. 505.2 Persons under legal disability.
(a) Claims may be submitted on behalf of persons who, being
otherwise eligible to make claims under the provisions of sections 5(i)
and 6(f), are incompetent or otherwise under any legal disability, by
the natural or legal guardian, committee, conservator, curator, or any
other person, including the spouse of the claimant, whom the Commission
determines is charged with the care of the claimant.
(b) Upon the death of any individual for whom an award has been
made, the Commission may consider the initial application filed by or in
behalf of the decedent as a formal claim for the purpose of reissuing
the award to the next eligible survivor in the order of preference as
set forth under sections 5(i) and 6(d)(4) of the Act.
Sec. 505.3 Definitions applicable under the Act.
Child means:
(1) A natural or adopted son or daughter of a deceased prisoner of
war
[[Page 27]]
or a deceased civilian prisoner of war or a deceased American citizen
including any posthumous son or daughter of such deceased person.
(2) Any son or daughter of a deceased person born out of wedlock
will be deemed to be a child of the deceased for the purpose of this
Act, if:
(i) Legitimated by a subsequent marriage of the parents,
(ii) Recognized as a child of the deceased by his or her admission,
or
(iii) So declared by an order or decree of any court of competent
jurisdiction.
Husband means the surviving male spouse of a deceased prisoner of
war or of a deceased civilian American citizen who was married to the
deceased at the time of her death by a marriage valid under the
applicable law of the place entered into.
Natural guardian means father and mother who shall be deemed to be
the natural guardians of the person of their minor children. If either
dies or is incapable of action, the natural guardianship of the person
shall devolve upon the other. In the event of death or incapacity of
both parents, then the blood relative, paternal or maternal, standing in
loco parentis to the minor shall be deemed the natural guardian.
Parent means:
(1)(i) The natural or adoptive father or mother of a deceased
prisoner of war, or any other individual standing in loco parentis to
the deceased person for a period of not less than 1 year immediately
preceding the date of that person's entry into active service and during
at least 1 year of the person's minority. Not more than one mother or
one father as defined shall be recognized in any case. An individual
will not be recognized as standing in loco parentis if the natural
parents or adoptive parents are living, unless there is affirmative
evidence of abandonment and renunciation of parental duties and
obligations by the natural or adoptive parent or parents prior to entry
into active service by the deceased prisoner or war;
(ii) An award in the full amount allowable had the deceased prisoner
of war survived may be made to only one parent when it is shown that the
other parent has died or if there is affirmative evidence of abandonment
and renunciation of parental duties and obligations by the other parent.
(2) The father of an illegitimate child will not be recognized as
such for purposes of the Act unless evidence establishes that:
(i) He has legitimated the child by subsequent marriage with the
mother;
(ii) Recognized the child as his by written admission prior to
enlistment of the deceased in the armed forces or entry into an overseas
duty status; or
(iii) Prior to death of the child he has been declared by decree of
a court of competent jurisdiction to be the father.
Widow means the surviving female spouse of a deceased prisoner of
war or a deceased civilian American citizen who was married to the
deceased at the time of his death by marriage valid under the applicable
law of the place where entered into.
PART 506_ELIGIBILITY REQUIREMENTS FOR COMPENSATION--Table of Contents
Subpart A_Civilian American Citizens
Sec.
506.1 ``Civilian American citizen'' defined.
506.2 Other definitions.
506.3 Rate of benefits payable.
506.4 Survivors entitled to award of detention benefits.
506.5 Persons not eligible to award of civilian detention benefits.
Subpart B_Prisoners of War
506.10 ``Vietnam conflict'' defined.
506.11 ``Prisoner of war'' defined.
506.12 Membership in the Armed Forces of the United States;
establishment of.
506.13 ``Armed Forces of the United States'' defined.
506.14 ``Force hostile to the United States'' defined.
506.15 Geneva Convention of August 12, 1949.
506.16 Failure to meet the conditions and requirements prescribed under
the Geneva Convention of August 12, 1949.
506.17 Rate of and basis for award of compensation.
506.18 Entitlement of survivors to award in case of death of prisoner of
war.
506.19 Members of the Armed Forces of the United States precluded from
receiving award of compensation.
Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C.
App. 2001).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
[[Page 28]]
Subpart A_Civilian American Citizens
Sec. 506.1 ``Civilian American citizen'' defined.
Civilian American citizen means any person who, being then a citizen
of the United States, was captured in Southeast Asia during the Vietnam
conflict by any force hostile to the United States, or who went into
hiding in Southeast Asia in order to avoid capture or internment by any
such hostile force.
Sec. 506.2 Other definitions.
Calendar month means the period of time between a designated day of
any given month and the date preceding a similarly designated day of the
following month.
Citizen of the United States means a person who under applicable law
acquired citizenship of the United States by birth, by naturalization,
or by derivation.
Dependent husband means the surviving male spouse of a deceased
civilian American citizen who was married to the deceased at the time of
her death by a marriage valid under the applicable law of the place
where entered into.
Force hostile to the United States means any organization or force
in Southeast Asia, or any agent or employee thereof, engaged in any
military or civil activities designed to further the prosecution of its
armed conflict against the Armed Forces of the United States during the
Vietnam conflict.
Southeast Asia means, but is not necessarily restricted to, the
areas of Vietnam, Laos, and Cambodia.
Went into hiding means the action taken by a civilian American
citizen when that person initiated a course of conduct consistent with
an intention to evade capture or detention by a hostile force in
Southeast Asia.
Sec. 506.3 Rate of benefits payable.
Detention benefits awarded to a civilian American citizen will be
paid at the rate of $150 for each calendar month of internment or during
the period in which that civilian American citizen went into hiding to
avoid capture and internment by a hostile force. Awards shall take
account of fractional parts of a calendar month.
Sec. 506.4 Survivors entitled to award of detention benefits.
In case of death of a civilian American citizen who would have been
entitled to detention benefits under the War Claims Act of 1948, as
amended, benefits will be awarded, if claim is made, only to the
following persons:
(a) Widow or husband if there is no child or children of the
deceased;
(b) Widow or dependent husband and child or children of the
deceased, one-half to the widow or dependent husband and the other half
to the child or children in equal shares;
(c) The child or children of the deceased in equal shares if there
is no widow or dependent husband, if otherwise qualified.
Sec. 506.5 Persons not eligible to award of civilian detention benefits.
An individual is disqualified as a ``civilian American citizen''
under the Act, and thus is precluded from receiving an award of
detention benefits, if that person:
(a) Voluntarily, knowingly, and without duress, gave aid to or
collaborated with or in any manner served the detaining hostile force;
or
(b) While detained, was a regularly appointed, enrolled, enlisted,
or inducted member of the Armed Forces of the United States.
Subpart B_Prisoners of War
Sec. 506.10 ``Vietnam conflict'' defined.
Vietnam conflict refers to the period beginning February 28, 1961,
and ending on a date to be determined by Presidential proclamation or
concurrent resolution of the Congress. (For purposes of determining
eligibility for certain veterans' benefits, the President has proclaimed
the date of May 7, 1975, to be the ending date of the ``Vietnam era''
(Presidential Proclamation No. 4373, 38 U.S.C. 101 note). In addition,
Congress has set May 7, 1975, as the ending date of the ``Vietnam
conflict'' for purposes of payment of interest on missing military
service members' deposits in the United States Treasury under 10 U.S.C.
1035. However, neither
[[Page 29]]
the President nor the Congress has set an ending date for the Vietnam
conflict for purposes of determining eligibility for compensation under
50 U.S.C. App. 2004 and 2005.)
Sec. 506.11 ``Prisoner of war'' defined.
Prisoner of war means any regularly appointed, enrolled, enlisted or
inducted member of the Armed Forces of the United States who was held by
any force hostile to the United States for any period of time during the
Vietnam conflict.
Sec. 506.12 Membership in the Armed Forces of the United States;
establishment of.
Regular appointment, enrollment, enlistment or induction in the
Armed Forces of the United States must be established by certification
obtained from the Department of Defense.
Sec. 506.13 ``Armed Forces of the United States'' defined.
Armed Forces of the United States means the United States Air Force,
Army, Navy, Marine Corps and Coast Guard, and commissioned officers of
the U.S. Public Health Service who were detailed for active duty with
the Armed Forces of the United States.
Sec. 506.14 ``Force hostile to the United States'' defined.
Force hostile to the United States means any organization or force
in Southeast Asia, or any agent or employee thereof, engaged in any
military or civil activities designed to further the prosecution of its
armed conflict against the Armed Forces of the United States during the
Vietnam conflict.
Sec. 506.15 Geneva Convention of August 12, 1949.
The Geneva Convention of August 12, 1949, as identified in section
6(f) of the War Claims Act of 1948, as amended, is the ``Geneva
Convention Relative to the Treatment of Prisoners of War of August 12,
1949'' which is included under the ``Geneva Convention of August 12,
1949, for the Protection of War Victims,'' entered into by the United
States and other governments, including the former government in North
Vietnam which acceded to it on June 28, 1957.
Sec. 506.16 Failure to meet the conditions and requirements prescribed
under the Geneva Convention of August 12, 1949.
For the purpose of this part, obligations under the Geneva
Convention of August 12, 1949, consist of the responsibility assumed by
the contracting parties thereto with respect to prisoners of war within
the meaning of the Convention, to comply with and to fully observe the
provisions of the Convention, and particularly those articles relating
to food rations of prisoners of war, humane treatment, protection, and
labor of prisoners of war, and the failure to abide by the conditions
and requirements established in such Convention by any hostile force
with which the Armed Forces of the United States were engaged in armed
conflict.
Sec. 506.17 Rate of and basis for award of compensation.
(a) Compensation allowed a prisoner of war during the Vietnam
conflict under section 6(f)(2) of the War Claims Act of 1948, as
amended, will be paid at the rate of $2 per day for each day on which
that person was held as prisoner of war and on which the hostile force,
or its agents, failed to furnish the quantity and quality of food
prescribed for prisoners of war under the Geneva Convention of August
12, 1949.
(b) Compensation allowed a prisoner of war during the Vietnam
conflict under section 6(f)(3) of the Act, will be paid at the rate of
$3 per day for each day on which that person was held as a prisoner of
war and on which the hostile force failed to meet the conditions and
requirements under the provisions of the Geneva Convention of August 12,
1949 relating to labor of prisoners of war or for inhumane treatment by
the hostile force by which such person was held.
(c) Compensation under paragraphs (a) and (b) of this section will
be paid to the prisoner of war or qualified applicant on a lump-sum
basis at a total rate of $5 per day for each day the prisoner of war was
entitled to compensation.
[[Page 30]]
Sec. 506.18 Entitlement of survivors to award in case of death of
prisoner of war.
In case of death of a prisoner of war who would have been entitled
to an award of compensation under section 6(f) (2) and (3) of the War
Claims Act of 1948, as amended, the compensation will be awarded, if
claim is made, only to the following persons:
(a) Widow or husband if there is no child or children of the
deceased;
(b) Widow or husband and child or children of the deceased, one-half
to the widow or husband and the other half to the child or children of
the deceased in equal shares;
(c) Child or children of the deceased (in equal shares) if there is
no widow or husband; and
(d) Parents (in equal shares) if there is no widow, husband or
child.
Sec. 506.19 Members of the Armed Forces of the United States
precluded from receiving award of compensation.
Any member of the Armed Forces of the United States, who at any
time, voluntarily, knowingly, and without duress gave aid to or
collaborated with, or in any manner served any force hostile to the
United States, is precluded from receiving an award of compensation
based on that member's capture and internment.
PART 507_PAYMENT--Table of Contents
Sec.
507.1 Payments under the War Claims Act of 1948, as amended by Pub. L.
91-289.
507.2 Payments to persons under legal disability.
507.3 Reissuance of awards.
Authority: Sec. 2, Pub. L. 80-896, as amended (50 U.S.C. App. 2001).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 507.1 Payments under the War Claims Act of 1948, as amended by
Public Law 91-289.
(a) Upon a determination by the Commission as to the amount and
validity of each claim filed pursuant to section 5(i) and 6(f) of the
War Claims Act of 1948, as amended, any award made thereunder will be
certified by the Commission to the Secretary of the Treasury for payment
out of funds appropriated for this purpose, in favor of the civilian
internee or prisoner of war found entitled thereto.
(b) Awards made to survivors of deceased civilian internees or
prisoners of war will be certified to the Secretary of the Treasury for
payment to the individual member or members of the class or classes of
survivors entitled to receive compensation in the full amount of the
share to which each survivor is entitled, and if applicable, under the
procedure set forth in Sec. 507.3, except that as to persons under
legal disability, payment will be made as specified in Sec. 507.2.
Sec. 507.2 Payments to persons under legal disability.
Any awards or any part of an award payable under sections 5(i) and
6(f) of the Act to any person under legal disability may, in the
discretion of the Commission, be certified for payment for the use of
the claimant, to the natural or legal guardian, committee, conservator
or curator, or if there is no natural or legal guardian, committee,
conservator or curator, then, in the discretion of the Commission, to
any person, including the spouse of such person, or the Chief Officer of
the hospital in which the claimant may be a patient, whom the Commission
may determine is charged with the care of the claimant. In the case of a
minor, any part of the amount payable may, in the discretion of the
Commission, be certified for payment to that minor.
Sec. 507.3 Reissuance of awards.
Upon the death of any claimant entitled to payment of an award, the
Commission will cause the award to be canceled and the amount of the
award will be redistributed to the survivors of the same class or to
members of the next class of eligible survivors, if appropriate, in the
order of preference as set forth under the Act.
PART 508_HEARINGS--Table of Contents
Sec.
508.1 Basis for hearing.
508.2 Request for hearing.
508.3 Notification to claimant.
508.4 Failure to file request for hearing.
[[Page 31]]
508.5 Purpose of hearing.
508.6 Resume of hearing, preparation of.
508.7 Action by the Commission.
508.8 Application of other regulations.
Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C.
App. 2001).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 508.1 Basis for hearing.
Any claimant whose application is denied or is approved for less
than the full allowable amount of his or her claim will be entitled to a
hearing before the Commission or its representative with respect to that
claim. Hearings may also be held on the Commission's own motion.
Sec. 508.2 Request for hearing.
Within 30 days after the Commission's notice of denial of a claim,
or approval for a lesser amount than claimed, has been posted by the
Commission, the claimant, if a hearing is desired, must notify the
Commission in writing, and must set forth in full the reasons for
requesting the hearing, including any statement of law or facts upon
which the claimant relies.
Sec. 508.3 Notification to claimant.
Upon receipt of such a request, the Commission will schedule a
hearing and notify the claimant as to the date and place the hearing is
to be held. No later than 10 days prior to the scheduled hearing date,
the claimant must submit all documents, briefs, or other additional
evidence relevant to his or her appeal.
Sec. 508.4 Failure to file request for hearing.
The failure to file a request for a hearing within the period
specified in Sec. 509.2 of this chapter will be deemed to constitute a
waiver of right to a hearing and the decision of the Commission will
constitute a full and final disposition of the case.
Sec. 508.5 Purpose of hearing.
(a) Hearings will be conducted by the Commission, its designee or
designees. Oral testimony and documentary evidence, including
depositions that may have been taken as provided by statute and the
rules of practice, may be offered in evidence on claimant's behalf or by
counsel for the Commission designated by it to represent the public
interest opposed to the allowance of an unjust or unfounded claim or
portion thereof, and either may cross-examine as to evidence offered
through witnesses on behalf of the other. Objections to the admission of
any such evidence will be ruled upon by the presiding officer.
(b) Hearings may be stenographically recorded either at the request
of the claimant or at the discretion of the Commission. A claimant
making such a request must notify the Commission at least 10 days prior
to the hearing date. When a stenographic record of a hearing is ordered
at the claimant's request, the cost of such reporting and transcription
may be charged to the claimant.
(c) Such hearings will be open to the public.
Sec. 508.6 R[eacute]sum[eacute] of hearing, preparation of.
Following each hearing, the hearing officer will prepare a
r[eacute]sum[eacute] of the hearing, specifying the issues on which the
hearing was based, and including a list of documents and contents and
other items relative to the issues that were introduced as evidence. A
brief analysis of oral testimony will also be prepared and included in
the r[eacute]sum[eacute] of each hearing not stenographically reported.
Sec. 508.7 Action by the Commission.
After the conclusion of the hearing and a review of the
r[eacute]sum[eacute], the Commission may affirm, modify, or reverse its
former action with respect to the claim, including a denial or reduction
in the amount of the award theretofore approved. All findings of the
Commission concerning the persons to whom compensation is payable, and
the amounts thereof, are conclusive and not reviewable by any court.
Sec. 508.8 Application of other regulations.
To the extent they are not inconsistent with the regulations set
forth under provisions of this subchapter,
[[Page 32]]
the other regulations of the Commission will also be applicable to the
claims filed hereunder.
[[Page 33]]
SUBCHAPTER C_RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER THE
INTERNATIONAL CLAIMS SETTLEMENT ACT OF 1949, AS AMENDED, AND RELATED
ACTS
PART 509_FILING OF CLAIMS AND PROCEDURES THEREFOR--Table of Contents
Sec.
509.1 Time for filing.
509.2 Form, content and filing of claims.
509.3 Exhibits and documents in support of claim.
509.4 Acknowledgment and numbering.
509.5 Procedure for determination of claims.
509.6 Hearings.
509.7 Presettlement conference.
Authority: Sec. 3, Pub. L. 455, 81st Cong., as amended (22 U.S.C.
1622).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 509.1 Time for filing.
Claims must be filed as specified by the Commission by duly
promulgated notice published in the Federal Register, or as specified in
legislation passed by Congress, as applicable.
Sec. 509.2 Form, content and filing of claims.
(a) Unless otherwise specified by law, or by regulations published
in the Federal Register, claims must be filed on official forms, which
will be provided by the Commission upon request in writing addressed to
the Commission at its office at 600 E Street, NW, Suite 6002,
Washington, DC 20579. Each form must include all of the information
called for in it and must be completed and signed in accordance with the
instructions accompanying the form.
(b) Notice to the Foreign Claims Settlement Commission, the
Department of State, or any other governmental office or agency of an
intention to file a claim against a foreign government, prior to the
enactment of the statute authorizing a claims program, prior to a
referral of claims to the Commission by the Secretary for pre-
adjudication, or prior to the effective date of a lump-sum claims
settlement agreement, will not be considered as a timely filing of a
claim under the statute, referral, or agreement.
(c) Any initial written indication of an intention to file a claim
received within 30 days prior to the expiration of the filing period
thereof will be considered as a timely filing of a claim if formalized
within 30 days after the expiration of the filing period.
Sec. 509.3 Exhibits and documents in support of claim.
(a) Original documents. If available, all exhibits and documents
must be filed with and at the same time as the claim, and must, wherever
possible, be in the form of original documents, or copies or originals
certified as such by their public or other official custodian.
(b) Documents in a foreign language. Each copy of a document,
exhibit or paper filed, which is written or printed in a language other
than English, must be accompanied by an English translation thereof duly
verified under oath by its translator to be a true and accurate
translation thereof, together with the name and address of the
translator.
(c) Preparation of papers. All claims, briefs, and memoranda filed
shall be typewritten or printed and, if typewritten, must be on business
letter (8\1/2\ x 11) size paper.
Sec. 509.4 Acknowledgment and numbering.
The Commission will acknowledge the receipt of a claim in writing
and will notify the claimant of the claim number assigned to it, which
number must be used on all further correspondence and papers filed with
regard to the claim.
Sec. 509.5 Procedure for determination of claims.
(a) The Commission may on its own motion order a hearing upon any
claim, specifying the questions to which the hearing shall be limited.
(b) Without previous hearing, the Commission or a designated member
of the staff may issue a Proposed Decision in determination of a claim.
This Proposed Decision will set forth findings of
[[Page 34]]
fact and conclusions of law on the relevant elements of the claim, to
the extent that evidence and information relevant to such elements is
before the Commission. The claimant will have the burden of proof in
submitting evidence and information sufficient to establish the elements
necessary for a determination of the validity and amount of his or her
claim.
(c) The Proposed Decision will be delivered to the claimant or the
claimant's attorney of record in person or by mail. Delivery by mail
will be deemed completed 5 days after the mailing of the Proposed
Decision addressed to the last known address of the claimant or the
claimant's attorney of record. A copy of the Proposed Decision will be
available for public inspection at the offices of the Commission, except
in cases where public disclosure of the names of claimants is barred by
statute.
(d) It will be the policy of the Commission to post on a bulletin
board and on its World Wide Web site (http://www.usdoj.gov/fcsc), any
information of general interest to claimants before the Commission.
(e) When the Proposed Decision denies a claim in whole or in part,
the claimant may file notice of objection to the denial within 15 days
of delivery of the decision. If the claimant wishes to appear at an oral
hearing before the Commission to present his or her objection, the
claimant must request the oral hearing at the time of submission of his
or her objection, stating the reasons for objection, and may request a
hearing on the claim, specifying whether for the taking of evidence or
for oral argument on the legal issues which are the subject of the
objection.
(f) Copies of objections to or requests for hearings on Proposed
Decisions will be available for public inspection at the Commission's
offices.
(g) Upon the expiration of 30 days after delivery to the claimant or
claimant's attorney, if no objection under this section has in the
meantime been filed, a staff Proposed Decision, upon approval by the
Commission, will become the Commission's final determination and
decision on the claim. A Proposed Decision issued by the Commission will
become final 30 days after delivery to the claimant or the claimant's
attorney without further order or decision by the Commission.
(h) If an objection has in the meantime been filed, but no hearing
requested, the Commission may, after due consideration thereof:
(1) Issue a Final Decision affirming or modifying its Proposed
Decision,
(2) Issue an Amended Proposed Decision, or
(3) On its own motion order hearing thereon, indicating whether for
the taking of evidence on specified questions or for the hearing of oral
arguments.
(i) After the conclusion of a hearing, upon the expiration of any
time allowed by the Commission for further submissions, the Commission
may proceed to issue a Final Decision in determination of the claim.
(j)(1) In case an individual claimant dies prior to the issuance of
the Final Decision, that person's legal representative will be
substituted as party claimant. However, upon failure of a representative
to qualify for substitution, the Commission may issue its decision in
the name of the estate of the deceased and, in case of an award, certify
the award in the same manner to the Secretary of the Treasury for
payment, if the payment of the award is provided for by statute.
(2) Notice of the Commission's action under this paragraph will be
forwarded to the claimant's attorney of record, or if the claimant is
not represented by an attorney, the notice will be addressed to the
estate of the claimant at the last known place of residence.
(3) The term legal representative as applied in this paragraph
means, in general, the administrator or executor, heir(s), next of kin,
or descendant(s).
(k) After the date of filing with the Commission no claim may be
amended to reflect the assignment thereof by the claimant to any other
person or entity except as otherwise provided by statute.
(l) At any time after a final Decision has been issued on a claim,
or a Proposed Decision has been entered as the Final Decision on a
claim, but not later than 60 days before the completion date of the
Commission's affairs in connection with the program under
[[Page 35]]
which such claim is filed, a petition to reopen on the ground of newly
discovered evidence may be filed. No such petition will be entertained
unless it appears therein that the newly discovered evidence came to the
knowledge of the party filing the petition subsequent to the date of
issuance of the Final Decision or the date on which the Proposed
Decision was entered as the Final Decision; that it was not for want of
due diligence that the evidence did not come sooner to the claimant's
knowledge; and that the evidence is material, and not merely cumulative,
and that reconsideration of the matter on the basis of that evidence
would produce a different decision. The petition must include a
statement of the facts which the petitioner expects to prove, the name
and address of each witness, the identity of documents, and the reasons
for failure to make earlier submission of the evidence.
Sec. 509.6 Hearings.
(a) Hearings, whether upon the Commission's own motion or upon
request of claimant, will be held upon not less than fifteen days'
notice of the time and place thereof.
(b) The hearings will be open to the public unless otherwise
requested by claimant and ordered by the Commission, or when required by
law.
(c) The hearings will be conducted by the Commission, its designee
or designees. Oral testimony and documentary evidence, including
depositions that may have been taken as provided by statute and the
rules of practices, may be offered in evidence on the claimant's behalf
or by counsel for the Commission designated by it to represent the
public interest opposed to the allowance of any unjust or unfounded
claim or portion thereof; and either may cross-examine as to evidence
offered through witnesses on behalf of the other. Objections to the
admission of any such evidence will be ruled upon by the presiding
officer.
(d) The hearings will be conducted as non-adversarial proceedings.
However, the claimant will be the moving party, and will have the burden
of proof on all issues involved in the determination of his or her
claim.
(e) Hearings may be stenographically reported or electronically
recorded, either at the request of the claimant or upon the discretion
of the Commission. A claimant making such a request must notify the
Commission at least ten (10) days prior to the hearing date. When a
stenographic record or transcript of a hearing is ordered at the
claimant's request, the cost of the reporting and transcription will be
charged to the claimant.
(f) The following rules of procedure will apply in the conduct of
hearings held by the Commission for presentation of objections to
Proposed Decisions:
(1) Presentation of Objections to Proposed Decisions (i) Objections
should focus either on the presentation of new evidence, or on the
presentation of arguments demonstrating that, in the claimant's view,
the Commission erred in considering the evidence previously submitted.
Restatements of facts, evidence or materials already established in the
record should be avoided.
(ii) The Chief Counsel of the Commission or designated staff
attorney will first introduce the objecting claimant and any witnesses
to the Commission, and will then present a brief summary of the case,
together with reasons supporting the decision as issued.
(iii) The objecting claimant and all witnesses will be sworn.
(iv) The objecting claimant, or the claimant's attorney, will then
present the claimant's objections to the Commission, specifically
setting forth the basis for the claimant's disagreement with the
Proposed Decision, and the reasons supporting the claimant's contention
that a more favorable decision should be rendered. Claimants will
normally be limited to fifteen (15) minutes for their presentation of
objections, but may request additional time if needed.
(v) Following presentation of the claimant's objection, the Chief
Counsel or designated staff attorney will be allotted an equivalent
amount of time to question the claimant and the claimant's witnesses
with respect to the testimony and other evidence presented in support of
the objection.
(vi) The objecting claimant or the claimant's attorney, and the
Chief
[[Page 36]]
Counsel or designated staff attorney, will then be allotted up to five
(5) minutes each for follow-up or rebuttal.
(vii) The Chair and Commissioners may direct questions to the
objecting claimant and the claimant's attorney, and to the Chief Counsel
or designated staff attorney, at any time during the proceedings
described in the foregoing.
(viii) The foregoing provisions may be modified at the discretion of
the Chair as circumstances may require.
(ix) At the conclusion, the Chair will inform the participants that
the Commission will take the matter under advisement, and that a written
Final Decision disposing of the objection will issue in due course.
(2) Submission to Questioning/Conduct of Proceedings (i)
Presentation of the claimant's objection by the objecting claimant or
the claimant's attorney, and of follow-up and rebuttal by the claimant
or the claimant's attorney and by the Chief Counsel or designated staff
attorney, must be directed to the Commission. Verbal exchanges between
the objecting claimant or the claimant's attorney, and the Chief Counsel
or designated staff attorney, will be limited to questions and answers
during the questioning phase of the proceeding described in paragraph
(f)(1)(v) of this section, unless otherwise necessary for clarification
or exchange of documents.
(ii) Professional conduct and courtesies of the kind normally
accorded in appellate judicial proceedings must be observed in all
appearances and proceedings before the Commission.
Sec. 509.7 Presettlement conference.
The Commission on its own motion or initiative, or upon the
application of a claimant for good cause shown, may direct that a
presettlement conference be held with respect to any issue involved in a
claim.
[[Page 37]]
CHAPTER VI--NATIONAL SCIENCE FOUNDATION
--------------------------------------------------------------------
Part Page
601 Classification and declassification of
national security information........... 39
602 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 41
604 New restrictions on lobbying................ 68
605 Nondiscrimination on the basis of handicap
in programs or activities receiving
Federal financial assistance............ 80
606 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the National
Science Foundation...................... 96
607 Salary offset............................... 102
608 Claims collection and administrative offset. 106
611 Nondiscrimination in federally-assisted
programs of the National Science
Foundation--effectuation of title VI of
the Civil Rights Act of 1964............ 110
612 Availability of records and information..... 120
613 Privacy Act regulations..................... 133
614 Government in the Sunshine Act regulations
of the National Science Board........... 137
615 Testimony and production of records......... 139
617 Nondiscrimination on the basis of age in
programs or activities receiving Federal
financial assistance from NSF........... 141
618 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 146
630 Governmentwide requirements for drug-free
workplace (financial assistance)........ 162
640 Compliance with the National Environmental
Policy Act.............................. 168
641 Environmental assessment procedures for
proposed National Science Foundation
actions in Antarctica................... 171
[[Page 38]]
650 Patents..................................... 176
660 Intergovernmental review of the National
Science Foundation programs and
activities.............................. 186
670 Conservation of Antarctic animals and plants 188
671 Waste regulation............................ 201
672 Enforcement and hearing procedures.......... 209
673 Antarctic non-governmental expeditions...... 221
674 Antarctic meteorites........................ 222
675 Medical clearance process for deployment to
Antarctica.............................. 224
680 National Science Foundation rules of
practice and statutory conflict-of-
interest exemptions..................... 225
681 Program Fraud Civil Remedies Act regulations 229
689 Research misconduct......................... 242
690 Protection of human subjects................ 247
[[Page 39]]
PART 601_CLASSIFICATION AND DECLASSIFICATION OF NATIONAL SECURITY
INFORMATION--Table of Contents
Sec.
601.1 Purpose.
601.2 Classification authority.
601.3 Security program.
601.4 Classification Review Committee.
601.5 Derivative classification.
601.6 Downgrading and declassification.
601.7 Mandatory declassification review.
601.8 Access to classified materials.
601.9 Access by historical researchers and former Presidential
appointees.
Authority: E.O. 12958, 3 CFR, 1995 Comp. p. 333.
Source: 47 FR 57284, Dec. 23, 1983, unless otherwise noted.
Sec. 601.1 Purpose.
Pursuant to Executive Order 12958 and Information Security Oversight
Office Directive No. 1, the National Science Foundation [Foundation]
issues the following regulations. The regulations identify the
information to be protected, prescribe classification, declassification,
downgrading, and safeguarding procedures to be followed, and establish a
monitoring system to ensure the regulations' effectiveness.
[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]
Sec. 601.2 Classification authority.
The Foundation does not have original classification authority under
Executive Order 12958. In any instance where a Foundation employee
develops information that appears to warrant classification because of
its national security character, the material will be afforded
protection and sent to the Division of Administrative Services (DAS).
Upon determination that classification is warranted, DAS will submit
such material to the agency that has appropriate subject matter interest
and classification authority.
[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]
Sec. 601.3 Security program.
The Director, Division of Administrative Services, is responsible
for conducting a security program that ensures effective implementation
of Executive Order 12958, to include:
(a) Maintaining active training and orientation programs for
employees concerned with classified information or material.
(b) Encouraging Foundation personnel to challenge those
classification decisions they believe to be improper.
(c) Issuing directives that ensure classified information is used,
processed, stored, reproduced and transmitted only under conditions that
will provide adequate protection and prevent access by unauthorized
persons.
(d) Recommending to the Director appropriate administrative action
to correct abuse or violation of any provision of these regulations,
including notification by warning letters, formal reprimand, and to the
extent permitted by law, suspension without pay and removal.
[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]
Sec. 601.4 Classification Review Committee.
The Security Officer (Information) chairs the Foundation's
Classification Review Committee which has authority to act on all
suggestions and complaints with respect to the Foundation's
administration of the regulations. The Assistant Directors and the Heads
of other offices reporting to the Director serve as members of the
Committee. All suggestions and complaints including those regarding
overclassification, failure to classify, or delay in declassifying not
otherwise resolved, shall be referred to the Committee for resolution.
The Committee shall establish procedures to review and act within 30
days upon all appeals regarding requests for declassification. The
Committee is authorized to overrule previous determinations in whole or
in part when in its judgment, continued protection is no longer
required. If the Committee determines that continued classification is
required under the criteria of the Executive Order, it shall promptly so
notify the requester and advise him that he may file an application for
review with the Foundation. In addition, the Committee shall review all
appeals of requests for records
[[Page 40]]
under section 552 of title 5 U.S.C. (Freedom of Information Act) when
the proposed denial is based on their continued classification under
Executive Order 12958.
[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]
Sec. 601.5 Derivative classification.
Distinct from ``original'' classification is the determination that
information is in substance the same as information currently
classified, because of incorporating, paraphrasing, restating or
generating in new form information that is already classified, and
marking the newly developed material consistent with the marking of the
source information. Persons who only reproduce, extract, or summarize
classified information, or who only apply classification markings
derived from source material or as directed by a classification guide,
need not possess original classification authority.
(a) If a person who applies derivative classification markings
believes that the paraphrasing, restating, or summarizing of classified
information has changed the level of or removed the basis for
classification, that person must consult for a determination an
appropriate official of the originating agency or office of origin who
has the authority to upgrade, downgrade, or declassify the information.
(b) The person who applies derivative classification markings shall
observe and respect original classification decisions; and carry forward
to any newly created documents any assigned authorized markings. The
declassification date or event that provides the longest period of
classification shall be used for documents classified on the basis of
multiple sources.
Sec. 601.6 Downgrading and declassification.
Executive Order 12958 prescribes a uniform system for classifying,
declassifying, and safeguarding national security information.
(a) Information shall be declassified or downgraded as soon as
national security considerations permit. The National Science Foundation
shall coordinate their review of classified information with other
agencies that have a direct interests in the subject matter. Information
that continues to meet the classification requirements prescribed by
Section 1.3 despite the passage of time will continue to be protected in
accordance with Executive Order 12958.
(b) Foundation documents may be declassified or downgraded by the
official who authorized the original classification, if that official is
still serving in the same position; the originator's successor; a
supervisory official of either; or officials delegated such authority in
writing by the Director.
(c) The Director shall conduct internal systematic review programs
for classified information originated by the Foundation contained in
records determined by the Archivist to be permanently valuable but that
have not been accessioned into the National Archives of the United
States.
(d) The Archivist of the United States shall, in accordance with
procedures and timeframes prescribed in the Information Security
Oversight Office's directives implementing Executive Order 12958,
systematically review for declassification or downgrading, classified
records accessioned into the National Archives of the United States.
Such information shall be reviewed by the Archivist for declassification
or downgrading in accordance with systematic review guidelines that
shall be provided by the head of the agency that originated the
information, or in the case of foreign government information, by the
Director of Information Security Oversight Office in consultation with
interested agency heads.
[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]
Sec. 601.7 Mandatory declassification review.
(a) The Division of Administrative Services is hereby designated as
the office to which members of the public or Departments may direct
requests for mandatory review for declassification under this provision.
In the case of documents originally classified by the Foundation, this
office shall, in turn, assign the request to the appropriate office for
action within 60 days. In each instance, receipt of the request will be
acknowledged in writing immediately
[[Page 41]]
by the office that has been assigned action. A request for
classification review must reasonably describe the document.
(b) Whenever a request is deficient in its description of the record
sought, the requester should be asked to provide additional identifying
information to the extent possible. Whenever a request does not
reasonably describe the information sought, the requester shall be
notified that unless additional information is provided or the scope of
the request is narrowed, no further action will be undertaken. Upon a
determination that the requested material no longer warrants
classification, it shall be declassified and made promptly available to
the requester, if not otherwise exempt from disclosure under 5 U.S.C.
552(b) (Freedom of Information Act) or other provision of law. If the
information may not be released in whole or in part the requester shall
be given a brief statement as to the reasons for denial, a notice of the
right to appeal the determination of the Classification Review
Committee, and a notice that such an appeal must be filed with the
Foundation within 60 days in order to be considered.
(c) When the request relates to a document given derivative
classification by the Foundation or originated by another agency, the
request and the document will be forwarded to the originator of the
source document, and the requestor notified of such referral.
(d) Employees presently cleared for access to classified information
are encouraged to challenge classification in cases where there is
reasonable cause to believe that information is classified
unnecessarily, improperly, or for an inappropriate period of time. Such
challenges should be brought to the attention of the Security Officer
(Information) who will act thereon within 30 days, informing the
challenger of actions taken. Requests for confidentiality will be
honored.
Sec. 601.8 Access to classified materials.
No person may be given access to classified information unless that
person has been determined to be trustworthy and unless access is
essential to the accomplishment of lawful and authorized Government
purposes.
Sec. 601.9 Access by historical researchers and former Presidential
appointees.
The requirement in Sec. 601.8 that access to classified information
may be granted only as is essential to the accomplishment of lawful and
authorized Government purposes may be waived for persons who are engaged
in historical research projects, or previously have occupied
policymaking positions to which they were appointed by the President,
provided they execute written agreements to safeguard the information
and written consent to the Foundation's review of their notes and
manuscripts solely for the purpose of determining that no classified
information is disclosed. A precondition to any such access is the
favorable completion of an appropriate investigative inquiry.
PART 602_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE
AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents
Subpart A_General
Sec.
602.1 Purpose and scope of this part.
602.2 Scope of subpart.
602.3 Definitions.
602.4 Applicability.
602.5 Effect on other issuances.
602.6 Additions and exceptions.
Subpart B_Pre-Award Requirements
602.10 Forms for applying for grants.
602.11 State plans.
602.12 Special grant or subgrant conditions for ``high-risk'' grantees.
Subpart C_Post-Award Requirements
Financial Administration
602.20 Standards for financial management systems.
602.21 Payment.
602.22 Allowable costs.
602.23 Period of availability of funds.
602.24 Matching or cost sharing.
602.25 Program income.
602.26 Non-Federal audit.
Changes, Property, and Subawards
602.30 Changes.
602.31 Real property.
602.32 Equipment.
602.33 Supplies.
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602.34 Copyrights.
602.35 Subawards to debarred and suspended parties.
602.36 Procurement.
602.37 Subgrants.
Reports, Records, Retention, and Enforcement
602.40 Monitoring and reporting program performance.
602.41 Financial reporting.
602.42 Retention and access requirements for records.
602.43 Enforcement.
602.44 Termination for convenience.
Subpart D_After-the-Grant Requirements
602.50 Closeout.
602.51 Later disallowances and adjustments.
602.52 Collection of amounts due.
Subpart E--Entitlements [Reserved]
Authority: 42 U.S.C. 1870(a).
Source: 53 FR 8080, 8087, Mar. 11, 1988, unless otherwise noted.
Subpart A_General
Sec. 602.1 Purpose and scope of this part.
This part establishes uniform administrative rules for Federal
grants and cooperative agreements and subawards to State, local and
Indian tribal governments.
Sec. 602.2 Scope of subpart.
This subpart contains general rules pertaining to this part and
procedures for control of exceptions from this part.
Sec. 602.3 Definitions.
As used in this part:
Accrued expenditures mean the charges incurred by the grantee during
a given period requiring the provision of funds for:
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subgrantees,
subcontractors, and other payees; and
(3) Other amounts becoming owed under programs for which no current
services or performance is required, such as annuities, insurance
claims, and other benefit payments.
Accrued income means the sum of:
(1) Earnings during a given period from services performed by the
grantee and goods and other tangible property delivered to purchasers,
and
(2) Amounts becoming owed to the grantee for which no current
services or performance is required by the grantee.
Acquisition cost of an item of purchased equipment means the net
invoice unit price of the property including the cost of modifications,
attachments, accessories, or auxiliary apparatus necessary to make the
property usable for the purpose for which it was acquired. Other charges
such as the cost of installation, transportation, taxes, duty or
protective in-transit insurance, shall be included or excluded from the
unit acquisition cost in accordance with the grantee's regular
accounting practices.
Administrative requirements mean those matters common to grants in
general, such as financial management, kinds and frequency of reports,
and retention of records. These are distinguished from programmatic
requirements, which concern matters that can be treated only on a
program-by-program or grant-by-grant basis, such as kinds of activities
that can be supported by grants under a particular program.
Awarding agency means (1) with respect to a grant, the Federal
agency, and (2) with respect to a subgrant, the party that awarded the
subgrant.
Cash contributions means the grantee's cash outlay, including the
outlay of money contributed to the grantee or subgrantee by other public
agencies and institutions, and private organizations and individuals.
When authorized by Federal legislation, Federal funds received from
other assistance agreements may be considered as grantee or subgrantee
cash contributions.
Contract means (except as used in the definitions for grant and
subgrant in this section and except where qualified by Federal) a
procurement contract under a grant or subgrant, and means a procurement
subcontract under a contract.
Cost sharing or matching means the value of the third party in-kind
contributions and the portion of the costs
[[Page 43]]
of a federally assisted project or program not borne by the Federal
Government.
Cost-type contract means a contract or subcontract under a grant in
which the contractor or subcontractor is paid on the basis of the costs
it incurs, with or without a fee.
Equipment means tangible, nonexpendable, personal property having a
useful life of more than one year and an acquisition cost of $5,000 or
more per unit. A grantee may use its own definition of equipment
provided that such definition would at least include all equipment
defined above.
Expenditure report means: (1) For nonconstruction grants, the SF-269
``Financial Status Report'' (or other equivalent report); (2) for
construction grants, the SF-271 ``Outlay Report and Request for
Reimbursement'' (or other equivalent report).
Federally recognized Indian tribal government means the governing
body or a governmental agency of any Indian tribe, band, nation, or
other organized group or community (including any Native village as
defined in section 3 of the Alaska Native Claims Settlement Act, 85
Stat. 688) certified by the Secretary of the Interior as eligible for
the special programs and services provided by him through the Bureau of
Indian Affairs.
Government means a State or local government or a federally
recognized Indian tribal government.
Grant means an award of financial assistance, including cooperative
agreements, in the form of money, or property in lieu of money, by the
Federal Government to an eligible grantee. The term does not include
technical assistance which provides services instead of money, or other
assistance in the form of revenue sharing, loans, loan guarantees,
interest subsidies, insurance, or direct appropriations. Also, the term
does not include assistance, such as a fellowship or other lump sum
award, which the grantee is not required to account for.
Grantee means the government to which a grant is awarded and which
is accountable for the use of the funds provided. The grantee is the
entire legal entity even if only a particular component of the entity is
designated in the grant award document.
Local government means a county, municipality, city, town, township,
local public authority (including any public and Indian housing agency
under the United States Housing Act of 1937) school district, special
district, intrastate district, council of governments (whether or not
incorporated as a nonprofit corporation under state law), any other
regional or interstate government entity, or any agency or
instrumentality of a local government.
Obligations means the amounts of orders placed, contracts and
subgrants awarded, goods and services received, and similar transactions
during a given period that will require payment by the grantee during
the same or a future period.
OMB means the United States Office of Management and Budget.
Outlays (expenditures) mean charges made to the project or program.
They may be reported on a cash or accrual basis. For reports prepared on
a cash basis, outlays are the sum of actual cash disbursement for direct
charges for goods and services, the amount of indirect expense incurred,
the value of in-kind contributions applied, and the amount of cash
advances and payments made to contractors and subgrantees. For reports
prepared on an accrued expenditure basis, outlays are the sum of actual
cash disbursements, the amount of indirect expense incurred, the value
of inkind contributions applied, and the new increase (or decrease) in
the amounts owed by the grantee for goods and other property received,
for services performed by employees, contractors, subgrantees,
subcontractors, and other payees, and other amounts becoming owed under
programs for which no current services or performance are required, such
as annuities, insurance claims, and other benefit payments.
Percentage of completion method refers to a system under which
payments are made for construction work according to the percentage of
completion of the work, rather than to the grantee's cost incurred.
Prior approval means documentation evidencing consent prior to
incurring specific cost.
[[Page 44]]
Real property means land, including land improvements, structures
and appurtenances thereto, excluding movable machinery and equipment.
Share, when referring to the awarding agency's portion of real
property, equipment or supplies, means the same percentage as the
awarding agency's portion of the acquiring party's total costs under the
grant to which the acquisition costs under the grant to which the
acquisition cost of the property was charged. Only costs are to be
counted--not the value of third-party in-kind contributions.
State means any of the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency or instrumentality of a
State exclusive of local governments. The term does not include any
public and Indian housing agency under United States Housing Act of
1937.
Subgrant means an award of financial assistance in the form of
money, or property in lieu of money, made under a grant by a grantee to
an eligible subgrantee. The term includes financial assistance when
provided by contractual legal agreement, but does not include
procurement purchases, nor does it include any form of assistance which
is excluded from the definition of grant in this part.
Subgrantee means the government or other legal entity to which a
subgrant is awarded and which is accountable to the grantee for the use
of the funds provided.
Supplies means all tangible personal property other than equipment
as defined in this part.
Suspension means depending on the context, either (1) temporary
withdrawal of the authority to obligate grant funds pending corrective
action by the grantee or subgrantee or a decision to terminate the
grant, or (2) an action taken by a suspending official in accordance
with agency regulations implementing E.O. 12549 to immediately exclude a
person from participating in grant transactions for a period, pending
completion of an investigation and such legal or debarment proceedings
as may ensue.
Termination means permanent withdrawal of the authority to obligate
previously-awarded grant funds before that authority would otherwise
expire. It also means the voluntary relinquishment of that authority by
the grantee or subgrantee. Termination does not include: (1) Withdrawal
of funds awarded on the basis of the grantee's underestimate of the
unobligated balance in a prior period; (2) Withdrawal of the unobligated
balance as of the expiration of a grant; (3) Refusal to extend a grant
or award additional funds, to make a competing or noncompeting
continuation, renewal, extension, or supplemental award; or (4) voiding
of a grant upon determination that the award was obtained fraudulently,
or was otherwise illegal or invalid from inception.
Terms of a grant or subgrant mean all requirements of the grant or
subgrant, whether in statute, regulations, or the award document.
Third party in-kind contributions mean property or services which
benefit a federally assisted project or program and which are
contributed by non-Federal third parties without charge to the grantee,
or a cost-type contractor under the grant agreement.
Unliquidated obligations for reports prepared on a cash basis mean
the amount of obligations incurred by the grantee that has not been
paid. For reports prepared on an accrued expenditure basis, they
represent the amount of obligations incurred by the grantee for which an
outlay has not been recorded.
Unobligated balance means the portion of the funds authorized by the
Federal agency that has not been obligated by the grantee and is
determined by deducting the cumulative obligations from the cumulative
funds authorized.
Sec. 602.4 Applicability.
(a) General. Subparts A through D of this part apply to all grants
and subgrants to governments, except where inconsistent with Federal
statutes or with regulations authorized in accordance with the exception
provision of Sec. 602.6, or:
(1) Grants and subgrants to State and local institutions of higher
education or State and local hospitals.
[[Page 45]]
(2) The block grants authorized by the Omnibus Budget Reconciliation
Act of 1981 (Community Services; Preventive Health and Health Services;
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child
Health Services; Social Services; Low-Income Home Energy Assistance;
States' Program of Community Development Block Grants for Small Cities;
and Elementary and Secondary Education other than programs administered
by the Secretary of Education under title V, Subtitle D, Chapter 2,
Section 583--the Secretary's discretionary grant program) and titles I-
III of the Job Training Partnership Act of 1982 and under the Public
Health Services Act (Section 1921), Alcohol and Drug Abuse Treatment and
Rehabilitation Block Grant and Part C of title V, Mental Health Service
for the Homeless Block Grant).
(3) Entitlement grants to carry out the following programs of the
Social Security Act:
(i) Aid to Needy Families with Dependent Children (Title IV-A of the
Act, not including the Work Incentive Program (WIN) authorized by
section 402(a)19(G); HHS grants for WIN are subject to this part);
(ii) Child Support Enforcement and Establishment of Paternity (Title
IV-D of the Act);
(iii) Foster Care and Adoption Assistance (Title IV-E of the Act);
(iv) Aid to the Aged, Blind, and Disabled (Titles I, X, XIV, and
XVI-AABD of the Act); and
(v) Medical Assistance (Medicaid) (Title XIX of the Act) not
including the State Medicaid Fraud Control program authorized by section
1903(a)(6)(B).
(4) Entitlement grants under the following programs of The National
School Lunch Act:
(i) School Lunch (section 4 of the Act),
(ii) Commodity Assistance (section 6 of the Act),
(iii) Special Meal Assistance (section 11 of the Act),
(iv) Summer Food Service for Children (section 13 of the Act), and
(v) Child Care Food Program (section 17 of the Act).
(5) Entitlement grants under the following programs of The Child
Nutrition Act of 1966:
(i) Special Milk (section 3 of the Act), and
(ii) School Breakfast (section 4 of the Act).
(6) Entitlement grants for State Administrative expenses under The
Food Stamp Act of 1977 (section 16 of the Act).
(7) A grant for an experimental, pilot, or demonstration project
that is also supported by a grant listed in paragraph (a)(3) of this
section;
(8) Grant funds awarded under subsection 412(e) of the Immigration
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat.
1809), for cash assistance, medical assistance, and supplemental
security income benefits to refugees and entrants and the administrative
costs of providing the assistance and benefits;
(9) Grants to local education agencies under 20 U.S.C. 236 through
241-1(a), and 242 through 244 (portions of the Impact Aid program),
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for
Handicapped Children); and
(10) Payments under the Veterans Administration's State Home Per
Diem Program (38 U.S.C. 641(a)).
(b) Entitlement programs. Entitlement programs enumerated above in
Sec. 602.4(a) (3) through (8) are subject to Subpart E.
Sec. 602.5 Effect on other issuances.
All other grants administration provisions of codified program
regulations, program manuals, handbooks and other nonregulatory
materials which are inconsistent with this part are superseded, except
to the extent they are required by statute, or authorized in accordance
with the exception provision in Sec. 602.6.
Sec. 602.6 Additions and exceptions.
(a) For classes of grants and grantees subject to this part, Federal
agencies may not impose additional administrative requirements except in
codified regulations published in the Federal Register.
[[Page 46]]
(b) Exceptions for classes of grants or grantees may be authorized
only by OMB.
(c) Exceptions on a case-by-case basis and for subgrantees may be
authorized by the affected Federal agencies.
Subpart B_Pre-Award Requirements
Sec. 602.10 Forms for applying for grants.
(a) Scope. (1) This section prescribes forms and instructions to be
used by governmental organizations (except hospitals and institutions of
higher education operated by a government) in applying for grants. This
section is not applicable, however, to formula grant programs which do
not require applicants to apply for funds on a project basis.
(2) This section applies only to applications to Federal agencies
for grants, and is not required to be applied by grantees in dealing
with applicants for subgrants. However, grantees are encouraged to avoid
more detailed or burdensome application requirements for subgrants.
(b) Authorized forms and instructions for governmental
organizations. (1) In applying for grants, applicants shall only use
standard application forms or those prescribed by the granting agency
with the approval of OMB under the Paperwork Reduction Act of 1980.
(2) Applicants are not required to submit more than the original and
two copies of preapplications or applications.
(3) Applicants must follow all applicable instructions that bear OMB
clearance numbers. Federal agencies may specify and describe the
programs, functions, or activities that will be used to plan, budget,
and evaluate the work under a grant. Other supplementary instructions
may be issued only with the approval of OMB to the extent required under
the Paperwork Reduction Act of 1980. For any standard form, except the
SF-424 facesheet, Federal agencies may shade out or instruct the
applicant to disregard any line item that is not needed.
(4) When a grantee applies for additional funding (such as a
continuation or supplemental award) or amends a previously submitted
application, only the affected pages need be submitted. Previously
submitted pages with information that is still current need not be
resubmitted.
Sec. 602.11 State plans.
(a) Scope. The statutes for some programs require States to submit
plans before receiving grants. Under regulations implementing Executive
Order 12372, ``Intergovernmental Review of Federal Programs,'' States
are allowed to simplify, consolidate and substitute plans. This section
contains additional provisions for plans that are subject to regulations
implementing the Executive order.
(b) Requirements. A State need meet only Federal administrative or
programmatic requirements for a plan that are in statutes or codified
regulations.
(c) Assurances. In each plan the State will include an assurance
that the State shall comply with all applicable Federal statutes and
regulations in effect with respect to the periods for which it receives
grant funding. For this assurance and other assurances required in the
plan, the State may:
(1) Cite by number the statutory or regulatory provisions requiring
the assurances and affirm that it gives the assurances required by those
provisions,
(2) Repeat the assurance language in the statutes or regulations, or
(3) Develop its own language to the extent permitted by law.
(d) Amendments. A State will amend a plan whenever necessary to
reflect: (1) New or revised Federal statutes or regulations or (2) a
material change in any State law, organization, policy, or State agency
operation. The State will obtain approval for the amendment and its
effective date but need submit for approval only the amended portions of
the plan.
Sec. 602.12 Special grant or subgrant conditions for ``high-risk''
grantees.
(a) A grantee or subgrantee may be considered ``high risk'' if an
awarding agency determines that a grantee or subgrantee:
(1) Has a history of unsatisfactory performance, or
(2) Is not financially stable, or
[[Page 47]]
(3) Has a management system which does not meet the management
standards set forth in this part, or
(4) Has not conformed to terms and conditions of previous awards, or
(5) Is otherwise not responsible; and if the awarding agency
determines that an award will be made, special conditions and/or
restrictions shall correspond to the high risk condition and shall be
included in the award.
(b) Special conditions or restrictions may include:
(1) Payment on a reimbursement basis;
(2) Withholding authority to proceed to the next phase until receipt
of evidence of acceptable performance within a given funding period;
(3) Requiring additional, more detailed financial reports;
(4) Additional project monitoring;
(5) Requiring the grantee or subgrantee to obtain technical or
management assistance; or
(6) Establishing additional prior approvals.
(c) If an awarding agency decides to impose such conditions, the
awarding official will notify the grantee or subgrantee as early as
possible, in writing, of:
(1) The nature of the special conditions/restrictions;
(2) The reason(s) for imposing them;
(3) The corrective actions which must be taken before they will be
removed and the time allowed for completing the corrective actions and
(4) The method of requesting reconsideration of the conditions/
restrictions imposed.
Subpart C_Post-Award Requirements
Financial Administration
Sec. 602.20 Standards for financial management systems.
(a) A State must expand and account for grant funds in accordance
with State laws and procedures for expending and accounting for its own
funds. Fiscal control and accounting procedures of the State, as well as
its subgrantees and cost-type contractors, must be sufficient to--
(1) Permit preparation of reports required by this part and the
statutes authorizing the grant, and
(2) Permit the tracing of funds to a level of expenditures adequate
to establish that such funds have not been used in violation of the
restrictions and prohibitions of applicable statutes.
(b) The financial management systems of other grantees and
subgrantees must meet the following standards:
(1) Financial reporting. Accurate, current, and complete disclosure
of the financial results of financially assisted activities must be made
in accordance with the financial reporting requirements of the grant or
subgrant.
(2) Accounting records. Grantees and subgrantees must maintain
records which adequately identify the source and application of funds
provided for financially-assisted activities. These records must contain
information pertaining to grant or subgrant awards and authorizations,
obligations, unobligated balances, assets, liabilities, outlays or
expenditures, and income.
(3) Internal control. Effective control and accountability must be
maintained for all grant and subgrant cash, real and personal property,
and other assets. Grantees and subgrantees must adequately safeguard all
such property and must assure that it is used solely for authorized
purposes.
(4) Budget control. Actual expenditures or outlays must be compared
with budgeted amounts for each grant or subgrant. Financial information
must be related to performance or productivity data, including the
development of unit cost information whenever appropriate or
specifically required in the grant or subgrant agreement. If unit cost
data are required, estimates based on available documentation will be
accepted whenever possible.
(5) Allowable cost. Applicable OMB cost principles, agency program
regulations, and the terms of grant and subgrant agreements will be
followed in determining the reasonableness, allowability, and
allocability of costs.
(6) Source documentation. Accounting records must be supported by
such source documentation as cancelled checks, paid bills, payrolls,
time and
[[Page 48]]
attendance records, contract and subgrant award documents, etc.
(7) Cash management. Procedures for minimizing the time elapsing
between the transfer of funds from the U.S. Treasury and disbursement by
grantees and subgrantees must be followed whenever advance payment
procedures are used. Grantees must establish reasonable procedures to
ensure the receipt of reports on subgrantees' cash balances and cash
disbursements in sufficient time to enable them to prepare complete and
accurate cash transactions reports to the awarding agency. When advances
are made by letter-of-credit or electronic transfer of funds methods,
the grantee must make drawdowns as close as possible to the time of
making disbursements. Grantees must monitor cash drawdowns by their
subgrantees to assure that they conform substantially to the same
standards of timing and amount as apply to advances to the grantees.
(c) An awarding agency may review the adequacy of the financial
management system of any applicant for financial assistance as part of a
preaward review or at any time subsequent to award.
Sec. 602.21 Payment.
(a) Scope. This section prescribes the basic standard and the
methods under which a Federal agency will make payments to grantees, and
grantees will make payments to subgrantees and contractors.
(b) Basic standard. Methods and procedures for payment shall
minimize the time elapsing between the transfer of funds and
disbursement by the grantee or subgrantee, in accordance with Treasury
regulations at 31 CFR part 205.
(c) Advances. Grantees and subgrantees shall be paid in advance,
provided they maintain or demonstrate the willingness and ability to
maintain procedures to minimize the time elapsing between the transfer
of the funds and their disbursement by the grantee or subgrantee.
(d) Reimbursement. Reimbursement shall be the preferred method when
the requirements in paragraph (c) of this section are not met. Grantees
and subgrantees may also be paid by reimbursement for any construction
grant. Except as otherwise specified in regulation, Federal agencies
shall not use the percentage of completion method to pay construction
grants. The grantee or subgrantee may use that method to pay its
construction contractor, and if it does, the awarding agency's payments
to the grantee or subgrantee will be based on the grantee's or
subgrantee's actual rate of disbursement.
(e) Working capital advances. If a grantee cannot meet the criteria
for advance payments described in paragraph (c) of this section, and the
Federal agency has determined that reimbursement is not feasible because
the grantee lacks sufficient working capital, the awarding agency may
provide cash or a working capital advance basis. Under this procedure
the awarding agency shall advance cash to the grantee to cover its
estimated disbursement needs for an initial period generally geared to
the grantee's disbursing cycle. Thereafter, the awarding agency shall
reimburse the grantee for its actual cash disbursements. The working
capital advance method of payment shall not be used by grantees or
subgrantees if the reason for using such method is the unwillingness or
inability of the grantee to provide timely advances to the subgrantee to
meet the subgrantee's actual cash disbursements.
(f) Effect of program income, refunds, and audit recoveries on
payment. (1) Grantees and subgrantees shall disburse repayments to and
interest earned on a revolving fund before requesting additional cash
payments for the same activity.
(2) Except as provided in paragraph (f)(1) of this section, grantees
and subgrantees shall disburse program income, rebates, refunds,
contract settlements, audit recoveries and interest earned on such funds
before requesting additional cash payments.
(g) Withholding payments. (1) Unless otherwise required by Federal
statute, awarding agencies shall not withhold payments for proper
charges incurred by grantees or subgrantees unless--
(i) The grantee or subgrantee has failed to comply with grant award
conditions or
[[Page 49]]
(ii) The grantee or subgrantee is indebted to the United States.
(2) Cash withheld for failure to comply with grant award condition,
but without suspension of the grant, shall be released to the grantee
upon subsequent compliance. When a grant is suspended, payment
adjustments will be made in accordance with Sec. 602.43(c).
(3) A Federal agency shall not make payment to grantees for amounts
that are withheld by grantees or subgrantees from payment to contractors
to assure satisfactory completion of work. Payments shall be made by the
Federal agency when the grantees or subgrantees actually disburse the
withheld funds to the contractors or to escrow accounts established to
assure satisfactory completion of work.
(h) Cash depositories. (1) Consistent with the national goal of
expanding the opportunities for minority business enterprises, grantees
and subgrantees are encouraged to use minority banks (a bank which is
owned at least 50 percent by minority group members). A list of minority
owned banks can be obtained from the Minority Business Development
Agency, Department of Commerce, Washington, DC 20230.
(2) A grantee or subgrantee shall maintain a separate bank account
only when required by Federal-State agreement.
(i) Interest earned on advances. Except for interest earned on
advances of funds exempt under the Intergovernmental Cooperation Act (31
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C.
450), grantees and subgrantees shall promptly, but at least quarterly,
remit interest earned on advances to the Federal agency. The grantee or
subgrantee may keep interest amounts up to $100 per year for
administrative expenses.
Sec. 602.22 Allowable costs.
(a) Limitation on use of funds. Grant funds may be used only for:
(1) The allowable costs of the grantees, subgrantees and cost-type
contractors, including allowable costs in the form of payments to fixed-
price contractors; and
(2) Reasonable fees or profit to cost-type contractors but not any
fee or profit (or other increment above allowable costs) to the grantee
or subgrantee.
(b) Applicable cost principles. For each kind of organization, there
is a set of Federal principles for determining allowable costs.
Allowable costs will be determined in accordance with the cost
principles applicable to the organization incurring the costs. The
following chart lists the kinds of organizations and the applicable cost
principles.
------------------------------------------------------------------------
For the costs of a-- Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal government.. OMB Circular A-87.
Private nonprofit organization other than OMB Circular A-122.
an (1) institution of higher education,
(2) hospital, or (3) organization named
in OMB Circular A-122 as not subject to
that circular.
Educational institutions.................. OMB Circular A-21.
For-profit organization other than a 48 CFR part 31. Contract
hospital and an organization named in OBM Cost Principles and
Circular A-122 as not subject to that Procedures, or uniform cost
circular. accounting standards that
comply with cost principles
acceptable to the Federal
agency.
------------------------------------------------------------------------
Sec. 602.23 Period of availability of funds.
(a) General. Where a funding period is specified, a grantee may
charge to the award only costs resulting from obligations of the funding
period unless carryover of unobligated balances is permitted, in which
case the carryover balances may be charged for costs resulting from
obligations of the subsequent funding period.
(b) Liquidation of obligations. A grantee must liquidate all
obligations incurred under the award not later than 90 days after the
end of the funding period (or as specified in a program regulation) to
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the
grantee.
Sec. 602.24 Matching or cost sharing.
(a) Basic rule: Costs and contributions acceptable. With the
qualifications and exceptions listed in paragraph (b) of this section, a
matching or cost sharing requirement may be satisfied by either or both
of the following:
[[Page 50]]
(1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
(2) The value of third party in-kind contributions applicable to the
period to which the cost sharing or matching requirements applies.
(b) Qualifications and exceptions--(1) Costs borne by other Federal
grant agreements. Except as provided by Federal statute, a cost sharing
or matching requirement may not be met by costs borne by another Federal
grant. This prohibition does not apply to income earned by a grantee or
subgrantee from a contract awarded under another Federal grant.
(2) General revenue sharing. For the purpose of this section,
general revenue sharing funds distributed under 31 U.S.C. 6702 are not
considered Federal grant funds.
(3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or
matching requirement of a grant agreement if they have been or will be
counted towards satisfying a cost sharing or matching requirement of
another Federal grant agreement, a Federal procurement contract, or any
other award of Federal funds.
(4) Costs financed by program income. Costs financed by program
income, as defined in Sec. 602.25, shall not count towards satisfying a
cost sharing or matching requirement unless they are expressly permitted
in the terms of the assistance agreement. (This use of general program
income is described in Sec. 602.25(g).)
(5) Services or property financed by income earned by contractors.
Contractors under a grant may earn income from the activities carried
out under the contract in addition to the amounts earned from the party
awarding the contract. No costs of services or property supported by
this income may count toward satisfying a cost sharing or matching
requirement unless other provisions of the grant agreement expressly
permit this kind of income to be used to meet the requirement.
(6) Records. Costs and third party in-kind contributions counting
towards satisfying a cost sharing or matching requirement must be
verifiable from the records of grantees and subgrantee or cost-type
contractors. These records must show how the value placed on third party
in-kind contributions was derived. To the extent feasible, volunteer
services will be supported by the same methods that the organization
uses to support the allocability of regular personnel costs.
(7) Special standards for third party in-kind contributions. (i)
Third party in-kind contributions count towards satisfying a cost
sharing or matching requirement only where, if the party receiving the
contributions were to pay for them, the payments would be allowable
costs.
(ii) Some third party in-kind contributions are goods and services
that, if the grantee, subgrantee, or contractor receiving the
contribution had to pay for them, the payments would have been an
indirect costs. Costs sharing or matching credit for such contributions
shall be given only if the grantee, subgrantee, or contractor has
established, along with its regular indirect cost rate, a special rate
for allocating to individual projects or programs the value of the
contributions.
(iii) A third party in-kind contribution to a fixed-price contract
may count towards satisfying a cost sharing or matching requirement only
if it results in:
(A) An increase in the services or property provided under the
contract (without additional cost to the grantee or subgrantee) or
(B) A cost savings to the grantee or subgrantee.
(iv) The values placed on third party in-kind contributions for cost
sharing or matching purposes will conform to the rules in the succeeding
sections of this part. If a third party in-kind contribution is a type
not treated in those sections, the value placed upon it shall be fair
and reasonable.
[[Page 51]]
(c) Valuation of donated services--(1) Volunteer services. Unpaid
services provided to a grantee or subgrantee by individuals will be
valued at rates consistent with those ordinarily paid for similar work
in the grantee's or subgrantee's organization. If the grantee or
subgrantee does not have employees performing similar work, the rates
will be consistent with those ordinarily paid by other employers for
similar work in the same labor market. In either case, a reasonable
amount for fringe benefits may be included in the valuation.
(2) Employees of other organizations. When an employer other than a
grantee, subgrantee, or cost-type contractor furnishes free of charge
the services of an employee in the employee's normal line of work, the
services will be valued at the employee's regular rate of pay exclusive
of the employee's fringe benefits and overhead costs. If the services
are in a different line of work, paragraph (c)(1) of this section
applies.
(d) Valuation of third party donated supplies and loaned equipment
or space. (1) If a third party donates supplies, the contribution will
be valued at the market value of the supplies at the time of donation.
(2) If a third party donates the use of equipment or space in a
building but retains title, the contribution will be valued at the fair
rental rate of the equipment or space.
(e) Valuation of third party donated equipment, buildings, and land.
If a third party donates equipment, buildings, or land, and title passes
to a grantee or subgrantee, the treatment of the donated property will
depend upon the purpose of the grant or subgrant, as follows:
(1) Awards for capital expenditures. If the purpose of the grant or
subgrant is to assist the grantee or subgrantee in the acquisition of
property, the market value of that property at the time of donation may
be counted as cost sharing or matching,
(2) Other awards. If assisting in the acquisition of property is not
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of
this section apply:
(i) If approval is obtained from the awarding agency, the market
value at the time of donation of the donated equipment or buildings and
the fair rental rate of the donated land may be counted as cost sharing
or matching. In the case of a subgrant, the terms of the grant agreement
may require that the approval be obtained from the Federal agency as
well as the grantee. In all cases, the approval may be given only if a
purchase of the equipment or rental of the land would be approved as an
allowable direct cost. If any part of the donated property was acquired
with Federal funds, only the non-federal share of the property may be
counted as cost-sharing or matching.
(ii) If approval is not obtained under paragraph (e)(2)(i) of this
section, no amount may be counted for donated land, and only
depreciation or use allowances may be counted for donated equipment and
buildings. The depreciation or use allowances for this property are not
treated as third party in-kind contributions. Instead, they are treated
as costs incurred by the grantee or subgrantee. They are computed and
allocated (usually as indirect costs) in accordance with the cost
principles specified in Sec. 602.22, in the same way as depreciation or
use allowances for purchased equipment and buildings. The amount of
depreciation or use allowances for donated equipment and buildings is
based on the property's market value at the time it was donated.
(f) Valuation of grantee or subgrantee donated real property for
construction/acquisition. If a grantee or subgrantee donates real
property for a construction or facilities acquisition project, the
current market value of that property may be counted as cost sharing or
matching. If any part of the donated property was acquired with Federal
funds, only the non-federal share of the property may be counted as cost
sharing or matching.
(g) Appraisal of real property. In some cases under paragraphs (d),
(e) and (f) of this section, it will be necessary to establish the
market value of land or a building or the fair rental rate of land or of
space in a building. In these cases, the Federal agency may require the
market value or fair rental value be set by an independent appraiser,
and that the value or rate be certified by the
[[Page 52]]
grantee. This requirement will also be imposed by the grantee on
subgrantees.
Sec. 602.25 Program income.
(a) General. Grantees are encouraged to earn income to defray
program costs. Program income includes income from fees for services
performed, from the use or rental of real or personal property acquired
with grant funds, from the sale of commodities or items fabricated under
a grant agreement, and from payments of principal and interest on loans
made with grant funds. Except as otherwise provided in regulations of
the Federal agency, program income does not include interest on grant
funds, rebates, credits, discounts, refunds, etc. and interest earned on
any of them.
(b) Definition of program income. Program income means gross income
received by the grantee or subgrantee directly generated by a grant
supported activity, or earned only as a result of the grant agreement
during the grant period. ``During the grant period'' is the time between
the effective date of the award and the ending date of the award
reflected in the final financial report.
(c) Cost of generating program income. If authorized by Federal
regulations or the grant agreement, costs incident to the generation of
program income may be deducted from gross income to determine program
income.
(d) Governmental revenues. Taxes, special assessments, levies,
fines, and other such revenues raised by a grantee or subgrantee are not
program income unless the revenues are specifically identified in the
grant agreement or Federal agency regulations as program income.
(e) Royalties. Income from royalties and license fees for
copyrighted material, patents, and inventions developed by a grantee or
subgrantee is program income only if the revenues are specifically
identified in the grant agreement or Federal agency regulations as
program income. (See Sec. 602.34.)
(f) Property. Proceeds from the sale of real property or equipment
will be handled in accordance with the requirements of Sec. Sec. 602.31
and 602.32.
(g) Use of program income. Program income shall be deducted from
outlays which may be both Federal and non-Federal as described below,
unless the Federal agency regulations or the grant agreement specify
another alternative (or a combination of the alternatives). In
specifying alternatives, the Federal agency may distinguish between
income earned by the grantee and income earned by subgrantees and
between the sources, kinds, or amounts of income. When Federal agencies
authorize the alternatives in paragraphs (g) (2) and (3) of this
section, program income in excess of any limits stipulated shall also be
deducted from outlays.
(1) Deduction. Ordinarily program income shall be deducted from
total allowable costs to determine the net allowable costs. Program
income shall be used for current costs unless the Federal agency
authorizes otherwise. Program income which the grantee did not
anticipate at the time of the award shall be used to reduce the Federal
agency and grantee contributions rather than to increase the funds
committed to the project.
(2) Addition. When authorized, program income may be added to the
funds committed to the grant agreement by the Federal agency and the
grantee. The program income shall be used for the purposes and under the
conditions of the grant agreement.
(3) Cost sharing or matching. When authorized, program income may be
used to meet the cost sharing or matching requirement of the grant
agreement. The amount of the Federal grant award remains the same.
(h) Income after the award period. There are no Federal requirements
governing the disposition of program income earned after the end of the
award period (i.e., until the ending date of the final financial report,
see paragraph (a) of this section), unless the terms of the agreement or
the Federal agency regulations provide otherwise.
Sec. 602.26 Non-Federal audit.
(a) Basic rule. Grantees and subgrantees are responsible for
obtaining audits in accordance with the Single Audit Act Amendments of
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of
States, Local
[[Page 53]]
Governments, and Non-Profit Organizations.'' The audits shall be made by
an independent auditor in accordance with generally accepted government
auditing standards covering financial audits.
(b) Subgrantees. State or local governments, as those terms are
defined for purposes of the Single Audit Act Amendments of 1996, that
provide Federal awards to a subgrantee, which expends $300,000 or more
(or other amount as specified by OMB) in Federal awards in a fiscal
year, shall:
(1) Determine whether State or local subgrantees have met the audit
requirements of the Act and whether subgrantees covered by OMB Circular
A-110, ``Uniform Administrative Requirements for Grants and Agreements
with Institutions of Higher Education, Hospitals, and Other Non-Profit
Organizations,'' have met the audit requirements of the Act. Commercial
contractors (private for-profit and private and governmental
organizations) providing goods and services to State and local
governments are not required to have a single audit performed. State and
local governments should use their own procedures to ensure that the
contractor has complied with laws and regulations affecting the
expenditure of Federal funds;
(2) Determine whether the subgrantee spent Federal assistance funds
provided in accordance with applicable laws and regulations. This may be
accomplished by reviewing an audit of the subgrantee made in accordance
with the Act, Circular A-110, or through other means (e.g., program
reviews) if the subgrantee has not had such an audit;
(3) Ensure that appropriate corrective action is taken within six
months after receipt of the audit report in instance of noncompliance
with Federal laws and regulations;
(4) Consider whether subgrantee audits necessitate adjustment of the
grantee's own records; and
(5) Require each subgrantee to permit independent auditors to have
access to the records and financial statements.
(c) Auditor selection. In arranging for audit services, Sec. 602.36
shall be followed.
[53 FR 8080, 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45946, Aug.
29, 1997]
Changes, Property, and Subawards
Sec. 602.30 Changes.
(a) General. Grantees and subgrantees are permitted to rebudget
within the approved direct cost budget to meet unanticipated
requirements and may make limited program changes to the approved
project. However, unless waived by the awarding agency, certain types of
post-award changes in budgets and projects shall require the prior
written approval of the awarding agency.
(b) Relation to cost principles. The applicable cost principles (see
Sec. 602.22) contain requirements for prior approval of certain types
of costs. Except where waived, those requirements apply to all grants
and subgrants even if paragraphs (c) through (f) of this section do not.
(c) Budget changes--(1) Nonconstruction projects. Except as stated
in other regulations or an award document, grantees or subgrantees shall
obtain the prior approval of the awarding agency whenever any of the
following changes is anticipated under a nonconstruction award:
(i) Any revision which would result in the need for additional
funding.
(ii) Unless waived by the awarding agency, cumulative transfers
among direct cost categories, or, if applicable, among separately
budgeted programs, projects, functions, or activities which exceed or
are expected to exceed ten percent of the current total approved budget,
whenever the awarding agency's share exceeds $100,000.
(iii) Transfer of funds allotted for training allowances (i.e., from
direct payments to trainees to other expense categories).
(2) Construction projects. Grantees and subgrantees shall obtain
prior written approval for any budget revision which would result in the
need for additional funds.
(3) Combined construction and nonconstruction projects. When a grant
or subgrant provides funding for both construction and nonconstruction
activities, the grantee or subgrantee must obtain prior written approval
from the awarding agency before making any
[[Page 54]]
fund or budget transfer from nonconstruction to construction or vice
versa.
(d) Programmatic changes. Grantees or subgrantees must obtain the
prior approval of the awarding agency whenever any of the following
actions is anticipated:
(1) Any revision of the scope or objectives of the project
(regardless of whether there is an associated budget revision requiring
prior approval).
(2) Need to extend the period of availability of funds.
(3) Changes in key persons in cases where specified in an
application or a grant award. In research projects, a change in the
project director or principal investigator shall always require approval
unless waived by the awarding agency.
(4) Under nonconstruction projects, contracting out, subgranting (if
authorized by law) or otherwise obtaining the services of a third party
to perform activities which are central to the purposes of the award.
This approval requirement is in addition to the approval requirements of
Sec. 602.36 but does not apply to the procurement of equipment,
supplies, and general support services.
(e) Additional prior approval requirements. The awarding agency may
not require prior approval for any budget revision which is not
described in paragraph (c) of this section.
(f) Requesting prior approval. (1) A request for prior approval of
any budget revision will be in the same budget formal the grantee used
in its application and shall be accompanied by a narrative justification
for the proposed revision.
(2) A request for a prior approval under the applicable Federal cost
principles (see Sec. 602.22) may be made by letter.
(3) A request by a subgrantee for prior approval will be addressed
in writing to the grantee. The grantee will promptly review such request
and shall approve or disapprove the request in writing. A grantee will
not approve any budget or project revision which is inconsistent with
the purpose or terms and conditions of the Federal grant to the grantee.
If the revision, requested by the subgrantee would result in a change to
the grantee's approved project which requires Federal prior approval,
the grantee will obtain the Federal agency's approval before approving
the subgrantee's request.
Sec. 602.31 Real property.
(a) Title. Subject to the obligations and conditions set forth in
this section, title to real property acquired under a grant or subgrant
will vest upon acquisition in the grantee or subgrantee respectively.
(b) Use. Except as otherwise provided by Federal statutes, real
property will be used for the originally authorized purposes as long as
needed for that purposes, and the grantee or subgrantee shall not
dispose of or encumber its title or other interests.
(c) Disposition. When real property is no longer needed for the
originally authorized purpose, the grantee or subgrantee will request
disposition instructions from the awarding agency. The instructions will
provide for one of the following alternatives:
(1) Retention of title. Retain title after compensating the awarding
agency. The amount paid to the awarding agency will be computed by
applying the awarding agency's percentage of participation in the cost
of the original purchase to the fair market value of the property.
However, in those situations where a grantee or subgrantee is disposing
of real property acquired with grant funds and acquiring replacement
real property under the same program, the net proceeds from the
disposition may be used as an offset to the cost of the replacement
property.
(2) Sale of property. Sell the property and compensate the awarding
agency. The amount due to the awarding agency will be calculated by
applying the awarding agency's percentage of participation in the cost
of the original purchase to the proceeds of the sale after deduction of
any actual and reasonable selling and fixing-up expenses. If the grant
is still active, the net proceeds from sale may be offset against the
original cost of the property. When a grantee or subgrantee is directed
to sell property, sales procedures shall be followed that provide for
competition to the extent practicable and result in the highest possible
return.
[[Page 55]]
(3) Transfer of title. Transfer title to the awarding agency or to a
third-party designated/approved by the awarding agency. The grantee or
subgrantee shall be paid an amount calculated by applying the grantee or
subgrantee's percentage of participation in the purchase of the real
property to the current fair market value of the property.
Sec. 602.32 Equipment.
(a) Title. Subject to the obligations and conditions set forth in
this section, title to equipment acquired under a grant or subgrant will
vest upon acquisition in the grantee or subgrantee respectively.
(b) States. A State will use, manage, and dispose of equipment
acquired under a grant by the State in accordance with State laws and
procedures. Other grantees and subgrantees will follow paragraphs (c)
through (e) of this section.
(c) Use. (1) Equipment shall be used by the grantee or subgrantee in
the program or project for which it was acquired as long as needed,
whether or not the project or program continues to be supported by
Federal funds. When no longer needed for the original program or
project, the equipment may be used in other activities currently or
previously supported by a Federal agency.
(2) The grantee or subgrantee shall also make equipment available
for use on other projects or programs currently or previously supported
by the Federal Government, providing such use will not interfere with
the work on the projects or program for which it was originally
acquired. First preference for other use shall be given to other
programs or projects supported by the awarding agency. User fees should
be considered if appropriate.
(3) Notwithstanding the encouragement in Sec. 602.25(a) to earn
program income, the grantee or subgrantee must not use equipment
acquired with grant funds to provide services for a fee to compete
unfairly with private companies that provide equivalent services, unless
specifically permitted or contemplated by Federal statute.
(4) When acquiring replacement equipment, the grantee or subgrantee
may use the equipment to be replaced as a trade-in or sell the property
and use the proceeds to offset the cost of the replacement property,
subject to the approval of the awarding agency.
(d) Management requirements. Procedures for managing equipment
(including replacement equipment), whether acquired in whole or in part
with grant funds, until disposition takes place will, as a minimum, meet
the following requirements:
(1) Property records must be maintained that include a description
of the property, a serial number or other identification number, the
source of property, who holds title, the acquisition date, and cost of
the property, percentage of Federal participation in the cost of the
property, the location, use and condition of the property, and any
ultimate disposition data including the date of disposal and sale price
of the property.
(2) A physical inventory of the property must be taken and the
results reconciled with the property records at least once every two
years.
(3) A control system must be developed to ensure adequate safeguards
to prevent loss, damage, or theft of the property. Any loss, damage, or
theft shall be investigated.
(4) Adequate maintenance procedures must be developed to keep the
property in good condition.
(5) If the grantee or subgrantee is authorized or required to sell
the property, proper sales procedures must be established to ensure the
highest possible return.
(e) Disposition. When original or replacement equipment acquired
under a grant or subgrant is no longer needed for the original project
or program or for other activities currently or previously supported by
a Federal agency, disposition of the equipment will be made as follows:
(1) Items of equipment with a current per-unit fair market value of
less than $5,000 may be retained, sold or otherwise disposed of with no
further obligation to the awarding agency.
(2) Items of equipment with a current per unit fair market value in
excess of $5,000 may be retained or sold and the awarding agency shall
have a right to an amount calculated by multiplying
[[Page 56]]
the current market value or proceeds from sale by the awarding agency's
share of the equipment.
(3) In cases where a grantee or subgrantee fails to take appropriate
disposition actions, the awarding agency may direct the grantee or
subgrantee to take excess and disposition actions.
(f) Federal equipment. In the event a grantee or subgrantee is
provided federally-owned equipment:
(1) Title will remain vested in the Federal Government.
(2) Grantees or subgrantees will manage the equipment in accordance
with Federal agency rules and procedures, and submit an annual inventory
listing.
(3) When the equipment is no longer needed, the grantee or
subgrantee will request disposition instructions from the Federal
agency.
(g) Right to transfer title. The Federal awarding agency may reserve
the right to transfer title to the Federal Government or a third part
named by the awarding agency when such a third party is otherwise
eligible under existing statutes. Such transfers shall be subject to the
following standards:
(1) The property shall be identified in the grant or otherwise made
known to the grantee in writing.
(2) The Federal awarding agency shall issue disposition instruction
within 120 calendar days after the end of the Federal support of the
project for which it was acquired. If the Federal awarding agency fails
to issue disposition instructions within the 120 calendar-day period the
grantee shall follow Sec. 602.32(e).
(3) When title to equipment is transferred, the grantee shall be
paid an amount calculated by applying the percentage of participation in
the purchase to the current fair market value of the property.
Sec. 602.33 Supplies.
(a) Title. Title to supplies acquired under a grant or subgrant will
vest, upon acquisition, in the grantee or subgrantee respectively.
(b) Disposition. If there is a residual inventory of unused supplies
exceeding $5,000 in total aggregate fair market value upon termination
or completion of the award, and if the supplies are not needed for any
other federally sponsored programs or projects, the grantee or
subgrantee shall compensate the awarding agency for its share.
Sec. 602.34 Copyrights.
The Federal awarding agency reserves a royalty-free, nonexclusive,
and irrevocable license to reproduce, publish or otherwise use, and to
authorize others to use, for Federal Government purposes:
(a) The copyright in any work developed under a grant, subgrant, or
contract under a grant or subgrant; and
(b) Any rights of copyright to which a grantee, subgrantee or a
contractor purchases ownership with grant support.
Sec. 602.35 Subawards to debarred and suspended parties.
Grantees and subgrantees must not make any award or permit any award
(subgrant or contract) at any tier to any party which is debarred or
suspended or is otherwise excluded from or ineligible for participation
in Federal assistance programs under Executive Order 12549, ``Debarment
and Suspension.''
Sec. 602.36 Procurement.
(a) States. When procuring property and services under a grant, a
State will follow the same policies and procedures it uses for
procurements from its non-Federal funds. The State will ensure that
every purchase order or other contract includes any clauses required by
Federal statutes and executive orders and their implementing
regulations. Other grantees and subgrantees will follow paragraphs (b)
through (i) in this section.
(b) Procurement standards. (1) Grantees and subgrantees will use
their own procurement procedures which reflect applicable State and
local laws and regulations, provided that the procurements conform to
applicable Federal law and the standards identified in this section.
(2) Grantees and subgrantees will maintain a contract administration
system which ensures that contractors perform in accordance with the
terms,
[[Page 57]]
conditions, and specifications of their contracts or purchase orders.
(3) Grantees and subgrantees will maintain a written code of
standards of conduct governing the performance of their employees
engaged in the award and administration of contracts. No employee,
officer or agent of the grantee or subgrantee shall participate in
selection, or in the award or administration of a contract supported by
Federal funds if a conflict of interest, real or apparent, would be
involved. Such a conflict would arise when:
(i) The employee, officer or agent,
(ii) Any member of his immediate family,
(iii) His or her partner, or
(iv) An organization which employs, or is about to employ, any of
the above, has a financial or other interest in the firm selected for
award. The grantee's or subgrantee's officers, employees or agents will
neither solicit nor accept gratuities, favors or anything of monetary
value from contractors, potential contractors, or parties to
subagreements. Grantee and subgrantees may set minimum rules where the
financial interest is not substantial or the gift is an unsolicited item
of nominal intrinsic value. To the extent permitted by State or local
law or regulations, such standards or conduct will provide for
penalties, sanctions, or other disciplinary actions for violations of
such standards by the grantee's and subgrantee's officers, employees, or
agents, or by contractors or their agents. The awarding agency may in
regulation provide additional prohibitions relative to real, apparent,
or potential conflicts of interest.
(4) Grantee and subgrantee procedures will provide for a review of
proposed procurements to avoid purchase of unnecessary or duplicative
items. Consideration should be given to consolidating or breaking out
procurements to obtain a more economical purchase. Where appropriate, an
analysis will be made of lease versus purchase alternatives, and any
other appropriate analysis to determine the most economical approach.
(5) To foster greater economy and efficiency, grantees and
subgrantees are encouraged to enter into State and local
intergovernmental agreements for procurement or use of common goods and
services.
(6) Grantees and subgrantees are encouraged to use Federal excess
and surplus property in lieu of purchasing new equipment and property
whenever such use is feasible and reduces project costs.
(7) Grantees and subgrantees are encouraged to use value engineering
clauses in contracts for construction projects of sufficient size to
offer reasonable opportunities for cost reductions. Value engineering is
a systematic and creative analysis of each contract item or task to
ensure that its essential function is provided at the overall lower
cost.
(8) Grantees and subgrantees will make awards only to responsible
contractors possessing the ability to perform successfully under the
terms and conditions of a proposed procurement. Consideration will be
given to such matters as contractor integrity, compliance with public
policy, record of past performance, and financial and technical
resources.
(9) Grantees and subgrantees will maintain records sufficient to
detail the significant history of a procurement. These records will
include, but are not necessarily limited to the following: rationale for
the method of procurement, selection of contract type, contractor
selection or rejection, and the basis for the contract price.
(10) Grantees and subgrantees will use time and material type
contracts only--
(i) After a determination that no other contract is suitable, and
(ii) If the contract includes a ceiling price that the contractor
exceeds at its own risk.
(11) Grantees and subgrantees alone will be responsible, in
accordance with good administrative practice and sound business
judgment, for the settlement of all contractual and administrative
issues arising out of procurements. These issues include, but are not
limited to source evaluation, protests, disputes, and claims. These
standards do not relieve the grantee or subgrantee of any contractual
responsibilities under its contracts. Federal agencies will not
substitute their judgment for
[[Page 58]]
that of the grantee or subgrantee unless the matter is primarily a
Federal concern. Violations of law will be referred to the local, State,
or Federal authority having proper jurisdiction.
(12) Grantees and subgrantees will have protest procedures to handle
and resolve disputes relating to their procurements and shall in all
instances disclose information regarding the protest to the awarding
agency. A protestor must exhaust all administrative remedies with the
grantee and subgrantee before pursuing a protest with the Federal
agency. Reviews of protests by the Federal agency will be limited to:
(i) Violations of Federal law or regulations and the standards of
this section (violations of State or local law will be under the
jurisdiction of State or local authorities) and
(ii) Violations of the grantee's or subgrantee's protest procedures
for failure to review a complaint or protest. Protests received by the
Federal agency other than those specified above will be referred to the
grantee or subgrantee.
(c) Competition. (1) All procurement transactions will be conducted
in a manner providing full and open competition consistent with the
standards of Sec. 602.36. Some of the situations considered to be
restrictive of competition include but are not limited to:
(i) Placing unreasonable requirements on firms in order for them to
qualify to do business,
(ii) Requiring unnecessary experience and excessive bonding,
(iii) Noncompetitive pricing practices between firms or between
affiliated companies,
(iv) Noncompetitive awards to consultants that are on retainer
contracts,
(v) Organizational conflicts of interest,
(vi) Specifying only a ``brand name'' product instead of allowing
``an equal'' product to be offered and describing the performance of
other relevant requirements of the procurement, and
(vii) Any arbitrary action in the procurement process.
(2) Grantees and subgrantees will conduct procurements in a manner
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or
proposals, except in those cases where applicable Federal statutes
expressly mandate or encourage geographic preference. Nothing in this
section preempts State licensing laws. When contracting for
architectural and engineering (A/E) services, geographic location may be
a selection criteria provided its application leaves an appropriate
number of qualified firms, given the nature and size of the project, to
compete for the contract.
(3) Grantees will have written selection procedures for procurement
transactions. These procedures will ensure that all solicitations:
(i) Incorporate a clear and accurate description of the technical
requirements for the material, product, or service to be procured. Such
description shall not, in competitive procurements, contain features
which unduly restrict competition. The description may include a
statement of the qualitative nature of the material, product or service
to be procured, and when necessary, shall set forth those minimum
essential characteristics and standards to which it must conform if it
is to satisfy its intended use. Detailed product specifications should
be avoided if at all possible. When it is impractical or uneconomical to
make a clear and accurate description of the technical requirements, a
``brand name or equal'' description may be used as a means to define the
performance or other salient requirements of a procurement. The specific
features of the named brand which must be met by offerors shall be
clearly stated; and
(ii) Identify all requirements which the offerors must fulfill and
all other factors to be used in evaluating bids or proposals.
(4) Grantees and subgrantees will ensure that all prequalified lists
of persons, firms, or products which are used in acquiring goods and
services are current and include enough qualified sources to ensure
maximum open and free competition. Also, grantees and subgrantees will
not preclude potential bidders from qualifying during the solicitation
period.
(d) Methods of procurement to be followed--(1) Procurement by small
purchase procedures. Small purchase procedures
[[Page 59]]
are those relatively simple and informal procurement methods for
securing services, supplies, or other property that do not cost more
than the simplified acquisition threshold fixed at 41 U.S.C. 403(11)
(currently set at $100,000). If small purchase procedures are used,
price or rate quotations shall be obtained from an adequate number of
qualified sources.
(2) Procurement by sealed bids (formal advertising). Bids are
publicly solicited and a firm-fixed-price contract (lump sum or unit
price) is awarded to the responsible bidder whose bid, conforming with
all the material terms and conditions of the invitation for bids, is the
lowest in price. The sealed bid method is the preferred method for
procuring construction, if the conditions in Sec. 602.36(d)(2)(i)
apply.
(i) In order for sealed bidding to be feasible, the following
conditions should be present:
(A) A complete, adequate, and realistic specification or purchase
description is available;
(B) Two or more responsible bidders are willing and able to compete
effectively and for the business; and
(C) The procurement lends itself to a firm fixed price contract and
the selection of the successful bidder can be made principally on the
basis of price.
(ii) If sealed bids are used, the following requirements apply:
(A) The invitation for bids will be publicly advertised and bids
shall be solicited from an adequate number of known suppliers, providing
them sufficient time prior to the date set for opening the bids;
(B) The invitation for bids, which will include any specifications
and pertinent attachments, shall define the items or services in order
for the bidder to properly respond;
(C) All bids will be publicly opened at the time and place
prescribed in the invitation for bids;
(D) A firm fixed-price contract award will be made in writing to the
lowest responsive and responsible bidder. Where specified in bidding
documents, factors such as discounts, transportation cost, and life
cycle costs shall be considered in determining which bid is lowest.
Payment discounts will only be used to determine the low bid when prior
experience indicates that such discounts are usually taken advantage of;
and
(E) Any or all bids may be rejected if there is a sound documented
reason.
(3) Procurement by competitive proposals. The technique of
competitive proposals is normally conducted with more than one source
submitting an offer, and either a fixed-price or cost-reimbursement type
contract is awarded. It is generally used when conditions are not
appropriate for the use of sealed bids. If this method is used, the
following requirements apply:
(i) Requests for proposals will be publicized and identify all
evaluation factors and their relative importance. Any response to
publicized requests for proposals shall be honored to the maximum extent
practical;
(ii) Proposals will be solicited from an adequate number of
qualified sources;
(iii) Grantees and subgrantees will have a method for conducting
technical evaluations of the proposals received and for selecting
awardees;
(iv) Awards will be made to the responsible firm whose proposal is
most advantageous to the program, with price and other factors
considered; and
(v) Grantees and subgrantees may use competitive proposal procedures
for qualifications-based procurement of architectural/engineering (A/E)
professional services whereby competitors' qualifications are evaluated
and the most qualified competitor is selected, subject to negotiation of
fair and reasonable compensation. The method, where price is not used as
a selection factor, can only be used in procurement of A/E professional
services. It cannot be used to purchase other types of services though
A/E firms are a potential source to perform the proposed effort.
(4) Procurement by noncompetitive proposals is procurement through
solicitation of a proposal from only one source, or after solicitation
of a number of sources, competition is determined inadequate.
(i) Procurement by noncompetitive proposals may be used only when
the award of a contract is infeasible under small purchase procedures,
sealed bids
[[Page 60]]
or competitive proposals and one of the following circumstances applies:
(A) The item is available only from a single source;
(B) The public exigency or emergency for the requirement will not
permit a delay resulting from competitive solicitation;
(C) The awarding agency authorizes noncompetitive proposals; or
(D) After solicitation of a number of sources, competition is
determined inadequate.
(ii) Cost analysis, i.e., verifying the proposed cost data, the
projections of the data, and the evaluation of the specific elements of
costs and profits, is required.
(iii) Grantees and subgrantees may be required to submit the
proposed procurement to the awarding agency for pre-award review in
accordance with paragraph (g) of this section.
(e) Contracting with small and minority firms, women's business
enterprise and labor surplus area firms. (1) The grantee and subgrantee
will take all necessary affirmative steps to assure that minority firms,
women's business enterprises, and labor surplus area firms are used when
possible.
(2) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's
business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women's
business enterprises are solicited whenever they are potential sources;
(iii) Dividing total requirements, when economically feasible, into
smaller tasks or quantities to permit maximum participation by small and
minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits,
which encourage participation by small and minority business, and
women's business enterprises;
(v) Using the services and assistance of the Small Business
Administration, and the Minority Business Development Agency of the
Department of Commerce; and
(vi) Requiring the prime contractor, if subcontracts are to be let,
to take the affirmative steps listed in paragraphs (e)(2) (i) through
(v) of this section.
(f) Contract cost and price. (1) Grantees and subgrantees must
perform a cost or price analysis in connection with every procurement
action including contract modifications. The method and degree of
analysis is dependent on the facts surrounding the particular
procurement situation, but as a starting point, grantees must make
independent estimates before receiving bids or proposals. A cost
analysis must be performed when the offeror is required to submit the
elements of his estimated cost, e.g., under professional, consulting,
and architectural engineering services contracts. A cost analysis will
be necessary when adequate price competition is lacking, and for sole
source procurements, including contract modifications or change orders,
unless price reasonableness can be established on the basis of a catalog
or market price of a commercial product sold in substantial quantities
to the general public or based on prices set by law or regulation. A
price analysis will be used in all other instances to determine the
reasonableness of the proposed contract price.
(2) Grantees and subgrantees will negotiate profit as a separate
element of the price for each contract in which there is no price
competition and in all cases where cost analysis is performed. To
establish a fair and reasonable profit, consideration will be given to
the complexity of the work to be performed, the risk borne by the
contractor, the contractor's investment, the amount of subcontracting,
the quality of its record of past performance, and industry profit rates
in the surrounding geographical area for similar work.
(3) Costs or prices based on estimated costs for contracts under
grants will be allowable only to the extent that costs incurred or cost
estimates included in negotiated prices are consistent with Federal cost
principles (see Sec. 602.22). Grantees may reference their own cost
principles that comply with the applicable Federal cost principles.
(4) The cost plus a percentage of cost and percentage of
construction cost methods of contracting shall not be used.
[[Page 61]]
(g) Awarding agency review. (1) Grantees and subgrantees must make
available, upon request of the awarding agency, technical specifications
on proposed procurements where the awarding agency believes such review
is needed to ensure that the item and/or service specified is the one
being proposed for purchase. This review generally will take place prior
to the time the specification is incorporated into a solicitation
document. However, if the grantee or subgrantee desires to have the
review accomplished after a solicitation has been developed, the
awarding agency may still review the specifications, with such review
usually limited to the technical aspects of the proposed purchase.
(2) Grantees and subgrantees must on request make available for
awarding agency pre-award review procurement documents, such as requests
for proposals or invitations for bids, independent cost estimates, etc.
when:
(i) A grantee's or subgrantee's procurement procedures or operation
fails to comply with the procurement standards in this section; or
(ii) The procurement is expected to exceed the simplified
acquisition threshold and is to be awarded without competition or only
one bid or offer is received in response to a solicitation; or
(iii) The procurement, which is expected to exceed the simplified
acquisition threshold, specifies a ``brand name'' product; or
(iv) The proposed award is more than the simplified acquisition
threshold and is to be awarded to other than the apparent low bidder
under a sealed bid procurement; or
(v) A proposed contract modification changes the scope of a contract
or increases the contract amount by more than the simplified acquisition
threshold.
(3) A grantee or subgrantee will be exempt from the pre-award review
in paragraph (g)(2) of this section if the awarding agency determines
that its procurement systems comply with the standards of this section.
(i) A grantee or subgrantee may request that its procurement system
be reviewed by the awarding agency to determine whether its system meets
these standards in order for its system to be certified. Generally,
these reviews shall occur where there is a continuous high-dollar
funding, and third-party contracts are awarded on a regular basis.
(ii) A grantee or subgrantee may self-certify its procurement
system. Such self-certification shall not limit the awarding agency's
right to survey the system. Under a self-certification procedure,
awarding agencies may wish to rely on written assurances from the
grantee or subgrantee that it is complying with these standards. A
grantee or subgrantee will cite specific procedures, regulations,
standards, etc., as being in compliance with these requirements and have
its system available for review.
(h) Bonding requirements. For construction or facility improvement
contracts or subcontracts exceeding the simplified acquisition
threshold, the awarding agency may accept the bonding policy and
requirements of the grantee or subgrantee provided the awarding agency
has made a determination that the awarding agency's interest is
adequately protected. If such a determination has not been made, the
minimum requirements shall be as follows:
(1) A bid guarantee from each bidder equivalent to five percent of
the bid price. The ``bid guarantee'' shall consist of a firm commitment
such as a bid bond, certified check, or other negotiable instrument
accompanying a bid as assurance that the bidder will, upon acceptance of
his bid, execute such contractual documents as may be required within
the time specified.
(2) A performance bond on the part of the contractor for 100 percent
of the contract price. A ``performance bond'' is one executed in
connection with a contract to secure fulfillment of all the contractor's
obligations under such contract.
(3) A payment bond on the part of the contractor for 100 percent of
the contract price. A ``payment bond'' is one executed in connection
with a contract to assure payment as required by law of all persons
supplying labor and material in the execution of the work provided for
in the contract.
[[Page 62]]
(i) Contract provisions. A grantee's and subgrantee's contracts must
contain provisions in paragraph (i) of this section. Federal agencies
are permitted to require changes, remedies, changed conditions, access
and records retention, suspension of work, and other clauses approved by
the Office of Federal Procurement Policy.
(1) Administrative, contractual, or legal remedies in instances
where contractors violate or breach contract terms, and provide for such
sanctions and penalties as may be appropriate. (Contracts more than the
simplified acquisition threshold)
(2) Termination for cause and for convenience by the grantee or
subgrantee including the manner by which it will be effected and the
basis for settlement. (All contracts in excess of $10,000)
(3) Compliance with Executive Order 11246 of September 24, 1965,
entitled ``Equal Employment Opportunity,'' as amended by Executive Order
11375 of October 13, 1967, and as supplemented in Department of Labor
regulations (41 CFR chapter 60). (All construction contracts awarded in
excess of $10,000 by grantees and their contractors or subgrantees)
(4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C.
874) as supplemented in Department of Labor regulations (29 CFR Part 3).
(All contracts and subgrants for construction or repair)
(5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7)
as supplemented by Department of Labor regulations (29 CFR Part 5).
(Construction contracts in excess of $2000 awarded by grantees and
subgrantees when required by Federal grant program legislation)
(6) Compliance with Sections 103 and 107 of the Contract Work Hours
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by
Department of Labor regulations (29 CFR Part 5). (Construction contracts
awarded by grantees and subgrantees in excess of $2000, and in excess of
$2500 for other contracts which involve the employment of mechanics or
laborers)
(7) Notice of awarding agency requirements and regulations
pertaining to reporting.
(8) Notice of awarding agency requirements and regulations
pertaining to patent rights with respect to any discovery or invention
which arises or is developed in the course of or under such contract.
(9) Awarding agency requirements and regulations pertaining to
copyrights and rights in data.
(10) Access by the grantee, the subgrantee, the Federal grantor
agency, the Comptroller General of the United States, or any of their
duly authorized representatives to any books, documents, papers, and
records of the contractor which are directly pertinent to that specific
contract for the purpose of making audit, examination, excerpts, and
transcriptions.
(11) Retention of all required records for three years after
grantees or subgrantees make final payments and all other pending
matters are closed.
(12) Compliance with all applicable standards, orders, or
requirements issued under section 306 of the Clean Air Act (42 U.S.C.
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive
Order 11738, and Environmental Protection Agency regulations (40 CFR
part 15). (Contracts, subcontracts, and subgrants of amounts in excess
of $100,000)
(13) Mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163,
89 Stat. 871).
[53 FR 8080, 8087 Mar. 11, 1988, as amended at 60 FR 19639, 19645, Apr.
19, 1995]
Sec. 602.37 Subgrants.
(a) States. States shall follow state law and procedures when
awarding and administering subgrants (whether on a cost reimbursement or
fixed amount basis) of financial assistance to local and Indian tribal
governments. States shall:
(1) Ensure that every subgrant includes any clauses required by
Federal statute and executive orders and their implementing regulations;
(2) Ensure that subgrantees are aware of requirements imposed upon
them by Federal statute and regulation;
[[Page 63]]
(3) Ensure that a provision for compliance with Sec. 602.42 is
placed in every cost reimbursement subgrant; and
(4) Conform any advances of grant funds to subgrantees substantially
to the same standards of timing and amount that apply to cash advances
by Federal agencies.
(b) All other grantees. All other grantees shall follow the
provisions of this part which are applicable to awarding agencies when
awarding and administering subgrants (whether on a cost reimbursement or
fixed amount basis) of financial assistance to local and Indian tribal
governments. Grantees shall:
(1) Ensure that every subgrant includes a provision for compliance
with this part;
(2) Ensure that every subgrant includes any clauses required by
Federal statute and executive orders and their implementing regulations;
and
(3) Ensure that subgrantees are aware of requirements imposed upon
them by Federal statutes and regulations.
(c) Exceptions. By their own terms, certain provisions of this part
do not apply to the award and administration of subgrants:
(1) Section 602.10;
(2) Section 602.11;
(3) The letter-of-credit procedures specified in Treasury
Regulations at 31 CFR part 205, cited in Sec. 602.21; and
(4) Section 602.50.
Reports, Records, Retention, and Enforcement
Sec. 602.40 Monitoring and reporting program performance.
(a) Monitoring by grantees. Grantees are responsible for managing
the day-to-day operations of grant and subgrant supported activities.
Grantees must monitor grant and subgrant supported activities to assure
compliance with applicable Federal requirements and that performance
goals are being achieved. Grantee monitoring must cover each program,
function or activity.
(b) Nonconstruction performance reports. The Federal agency may, if
it decides that performance information available from subsequent
applications contains sufficient information to meet its programmatic
needs, require the grantee to submit a performance report only upon
expiration or termination of grant support. Unless waived by the Federal
agency this report will be due on the same date as the final Financial
Status Report.
(1) Grantees shall submit annual performance reports unless the
awarding agency requires quarterly or semi-annual reports. However,
performance reports will not be required more frequently than quarterly.
Annual reports shall be due 90 days after the grant year, quarterly or
semi-annual reports shall be due 30 days after the reporting period. The
final performance report will be due 90 days after the expiration or
termination of grant support. If a justified request is submitted by a
grantee, the Federal agency may extend the due date for any performance
report. Additionally, requirements for unnecessary performance reports
may be waived by the Federal agency.
(2) Performance reports will contain, for each grant, brief
information on the following:
(i) A comparison of actual accomplishments to the objectives
established for the period. Where the output of the project can be
quantified, a computation of the cost per unit of output may be required
if that information will be useful.
(ii) The reasons for slippage if established objectives were not
met.
(iii) Additional pertinent information including, when appropriate,
analysis and explanation of cost overruns or high unit costs.
(3) Grantees will not be required to submit more than the original
and two copies of performance reports.
(4) Grantees will adhere to the standards in this section in
prescribing performance reporting requirements for subgrantees.
(c) Construction performance reports. For the most part, on-site
technical inspections and certified percentage-of-completion data are
relied on heavily by Federal agencies to monitor progress under
construction grants and subgrants. The Federal agency will require
additional formal performance reports only when considered necessary,
and never more frequently than quarterly.
[[Page 64]]
(d) Significant developments. Events may occur between the scheduled
performance reporting dates which have significant impact upon the grant
or subgrant supported activity. In such cases, the grantee must inform
the Federal agency as soon as the following types of conditions become
known:
(1) Problems, delays, or adverse conditions which will materially
impair the ability to meet the objective of the award. This disclosure
must include a statement of the action taken, or contemplated, and any
assistance needed to resolve the situation.
(2) Favorable developments which enable meeting time schedules and
objectives sooner or at less cost than anticipated or producing more
beneficial results than originally planned.
(e) Federal agencies may make site visits as warranted by program
needs.
(f) Waivers, extensions. (1) Federal agencies may waive any
performance report required by this part if not needed.
(2) The grantee may waive any performance report from a subgrantee
when not needed. The grantee may extend the due date for any performance
report from a subgrantee if the grantee will still be able to meet its
performance reporting obligations to the Federal agency.
Sec. 602.41 Financial reporting.
(a) General. (1) Except as provided in paragraphs (a) (2) and (5) of
this section, grantees will use only the forms specified in paragraphs
(a) through (e) of this section, and such supplementary or other forms
as may from time to time be authorized by OMB, for:
(i) Submitting financial reports to Federal agencies, or
(ii) Requesting advances or reimbursements when letters of credit
are not used.
(2) Grantees need not apply the forms prescribed in this section in
dealing with their subgrantees. However, grantees shall not impose more
burdensome requirements on subgrantees.
(3) Grantees shall follow all applicable standard and supplemental
Federal agency instructions approved by OMB to the extend required under
the Paperwork Reduction Act of 1980 for use in connection with forms
specified in paragraphs (b) through (e) of this section. Federal
agencies may issue substantive supplementary instructions only with the
approval of OMB. Federal agencies may shade out or instruct the grantee
to disregard any line item that the Federal agency finds unnecessary for
its decisionmaking purposes.
(4) Grantees will not be required to submit more than the original
and two copies of forms required under this part.
(5) Federal agencies may provide computer outputs to grantees to
expedite or contribute to the accuracy of reporting. Federal agencies
may accept the required information from grantees in machine usable
format or computer printouts instead of prescribed forms.
(6) Federal agencies may waive any report required by this section
if not needed.
(7) Federal agencies may extend the due date of any financial report
upon receiving a justified request from a grantee.
(b) Financial Status Report--(1) Form. Grantees will use Standard
Form 269 or 269A, Financial Status Report, to report the status of funds
for all nonconstruction grants and for construction grants when required
in accordance with paragraph Sec. 602.41(e)(2)(iii) of this section.
(2) Accounting basis. Each grantee will report program outlays and
program income on a cash or accrual basis as prescribed by the awarding
agency. If the Federal agency requires accrual information and the
grantee's accounting records are not normally kept on the accural basis,
the grantee shall not be required to convert its accounting system but
shall develop such accrual information through and analysis of the
documentation on hand.
(3) Frequency. The Federal agency may prescribe the frequency of the
report for each project or program. However, the report will not be
required more frequently than quarterly. If the Federal agency does not
specify the frequency of the report, it will be submitted annually. A
final report will be required upon expiration or termination of grant
support.
(4) Due date. When reports are required on a quarterly or semiannual
[[Page 65]]
basis, they will be due 30 days after the reporting period. When
required on an annual basis, they will be due 90 days after the grant
year. Final reports will be due 90 days after the expiration or
termination of grant support.
(c) Federal Cash Transactions Report--(1) Form. (i) For grants paid
by letter or credit, Treasury check advances or electronic transfer of
funds, the grantee will submit the Standard Form 272, Federal Cash
Transactions Report, and when necessary, its continuation sheet,
Standard Form 272a, unless the terms of the award exempt the grantee
from this requirement.
(ii) These reports will be used by the Federal agency to monitor
cash advanced to grantees and to obtain disbursement or outlay
information for each grant from grantees. The format of the report may
be adapted as appropriate when reporting is to be accomplished with the
assistance of automatic data processing equipment provided that the
information to be submitted is not changed in substance.
(2) Forecasts of Federal cash requirements. Forecasts of Federal
cash requirements may be required in the ``Remarks'' section of the
report.
(3) Cash in hands of subgrantees. When considered necessary and
feasible by the Federal agency, grantees may be required to report the
amount of cash advances in excess of three days' needs in the hands of
their subgrantees or contractors and to provide short narrative
explanations of actions taken by the grantee to reduce the excess
balances.
(4) Frequency and due date. Grantees must submit the report no later
than 15 working days following the end of each quarter. However, where
an advance either by letter of credit or electronic transfer of funds is
authorized at an annualized rate of one million dollars or more, the
Federal agency may require the report to be submitted within 15 working
days following the end of each month.
(d) Request for advance or reimbursement--(1) Advance payments.
Requests for Treasury check advance payments will be submitted on
Standard Form 270, Request for Advance or Reimbursement. (This form will
not be used for drawdowns under a letter of credit, electronic funds
transfer or when Treasury check advance payments are made to the grantee
automatically on a predetermined basis.)
(2) Reimbursements. Requests for reimbursement under nonconstruction
grants will also be submitted on Standard Form 270. (For reimbursement
requests under construction grants, see paragraph (e)(1) of this
section.)
(3) The frequency for submitting payment requests is treated in
Sec. 602.41(b)(3).
(e) Outlay report and request for reimbursement for construction
programs. (1) Grants that support construction activities paid by
reimbursement method.
(i) Requests for reimbursement under construction grants will be
submitted on Standard Form 271, Outlay Report and Request for
Reimbursement for Construction Programs. Federal agencies may, however,
prescribe the Request for Advance or Reimbursement form, specified in
Sec. 602.41(d), instead of this form.
(ii) The frequency for submitting reimbursement requests is treated
in Sec. 602.41(b)(3).
(2) Grants that support construction activities paid by letter of
credit, electronic funds transfer or Treasury check advance.
(i) When a construction grant is paid by letter of credit,
electronic funds transfer or Treasury check advances, the grantee will
report its outlays to the Federal agency using Standard Form 271, Outlay
Report and Request for Reimbursement for Construction Programs. The
Federal agency will provide any necessary special instruction. However,
frequency and due date shall be governed by Sec. 602.41(b) (3) and (4).
(ii) When a construction grant is paid by Treasury check advances
based on periodic requests from the grantee, the advances will be
requested on the form specified in Sec. 602.41(d).
(iii) The Federal agency may substitute the Financial Status Report
specified in Sec. 602.41(b) for the Outlay Report and Request for
Reimbursement for Construction Programs.
[[Page 66]]
(3) Accounting basis. The accounting basis for the Outlay Report and
Request for Reimbursement for Construction Programs shall be governed by
Sec. 602.41(b)(2).
Sec. 602.42 Retention and access requirements for records.
(a) Applicability. (1) This section applies to all financial and
programmatic records, supporting documents, statistical records, and
other records of grantees or subgrantees which are:
(i) Required to be maintained by the terms of this part, program
regulations or the grant agreement, or
(ii) Otherwise reasonably considered as pertinent to program
regulations or the grant agreement.
(2) This section does not apply to records maintained by contractors
or subcontractors. For a requirement to place a provision concerning
records in certain kinds of contracts, see Sec. 602.36(i)(10).
(b) Length of retention period. (1) Except as otherwise provided,
records must be retained for three years from the starting date
specified in paragraph (c) of this section.
(2) If any litigation, claim, negotiation, audit or other action
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action
and resolution of all issues which arise from it, or until the end of
the regular 3-year period, whichever is later.
(3) To avoid duplicate recordkeeping, awarding agencies may make
special arrangements with grantees and subgrantees to retain any records
which are continuously needed for joint use. The awarding agency will
request transfer of records to its custody when it determines that the
records possess long-term retention value. When the records are
transferred to or maintained by the Federal agency, the 3-year retention
requirement is not applicable to the grantee or subgrantee.
(c) Starting date of retention period--(1) General. When grant
support is continued or renewed at annual or other intervals, the
retention period for the records of each funding period starts on the
day the grantee or subgrantee submits to the awarding agency its single
or last expenditure report for that period. However, if grant support is
continued or renewed quarterly, the retention period for each year's
records starts on the day the grantee submits its expenditure report for
the last quarter of the Federal fiscal year. In all other cases, the
retention period starts on the day the grantee submits its final
expenditure report. If an expenditure report has been waived, the
retention period starts on the day the report would have been due.
(2) Real property and equipment records. The retention period for
real property and equipment records starts from the date of the
disposition or replacement or transfer at the direction of the awarding
agency.
(3) Records for income transactions after grant or subgrant support.
In some cases grantees must report income after the period of grant
support. Where there is such a requirement, the retention period for the
records pertaining to the earning of the income starts from the end of
the grantee's fiscal year in which the income is earned.
(4) Indirect cost rate proposals, cost allocations plans, etc. This
paragraph applies to the following types of documents, and their
supporting records: indirect cost rate computations or proposals, cost
allocation plans, and any similar accounting computations of the rate at
which a particular group of costs is chargeable (such as computer usage
chargeback rates or composite fringe benefit rates).
(i) If submitted for negotiation. If the proposal, plan, or other
computation is required to be submitted to the Federal Government (or to
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of
such submission.
(ii) If not submitted for negotiation. If the proposal, plan, or
other computation is not required to be submitted to the Federal
Government (or to the grantee) for negotiation purposes, then the 3-year
retention period for the proposal plan, or computation and its
supporting records starts from end of the fiscal year (or other
accounting period) covered by the proposal, plan, or other computation.
[[Page 67]]
(d) Substitution of microfilm. Copies made by microfilming,
photocopying, or similar methods may be substituted for the original
records.
(e) Access to records--(1) Records of grantees and subgrantees. The
awarding agency and the Comptroller General of the United States, or any
of their authorized representatives, shall have the right of access to
any pertinent books, documents, papers, or other records of grantees and
subgrantees which are pertinent to the grant, in order to make audits,
examinations, excerpts, and transcripts.
(2) Expiration of right of access. The rights of access in this
section must not be limited to the required retention period but shall
last as long as the records are retained.
(f) Restrictions on public access. The Federal Freedom of
Information Act (5 U.S.C. 552) does not apply to records Unless required
by Federal, State, or local law, grantees and subgrantees are not
required to permit public access to their records.
Sec. 602.43 Enforcement.
(a) Remedies for noncompliance. If a grantee or subgrantee
materially fails to comply with any term of an award, whether stated in
a Federal statute or regulation, an assurance, in a State plan or
application, a notice of award, or elsewhere, the awarding agency may
take one or more of the following actions, as appropriate in the
circumstances:
(1) Temporarily withhold cash payments pending correction of the
deficiency by the grantee or subgrantee or more severe enforcement
action by the awarding agency,
(2) Disallow (that is, deny both use of funds and matching credit
for) all or part of the cost of the activity or action not in
compliance,
(3) Wholly or partly suspend or terminate the current award for the
grantee's or subgrantee's program,
(4) Withhold further awards for the program, or
(5) Take other remedies that may be legally available.
(b) Hearings, appeals. In taking an enforcement action, the awarding
agency will provide the grantee or subgrantee an opportunity for such
hearing, appeal, or other administrative proceeding to which the grantee
or subgrantee is entitled under any statute or regulation applicable to
the action involved.
(c) Effects of suspension and termination. Costs of grantee or
subgrantee resulting from obligations incurred by the grantee or
subgrantee during a suspension or after termination of an award are not
allowable unless the awarding agency expressly authorizes them in the
notice of suspension or termination or subsequently. Other grantee or
subgrantee costs during suspension or after termination which are
necessary and not reasonably avoidable are allowable if:
(1) The costs result from obligations which were properly incurred
by the grantee or subgrantee before the effective date of suspension or
termination, are not in anticipation of it, and, in the case of a
termination, are noncancellable, and,
(2) The costs would be allowable if the award were not suspended or
expired normally at the end of the funding period in which the
termination takes effect.
(d) Relationship to debarment and suspension. The enforcement
remedies identified in this section, including suspension and
termination, do not preclude grantee or subgrantee from being subject to
``Debarment and Suspension'' under E.O. 12549 (see Sec. 602.35).
Sec. 602.44 Termination for convenience.
Except as provided in Sec. 602.43 awards may be terminated in whole
or in part only as follows:
(a) By the awarding agency with the consent of the grantee or
subgrantee in which case the two parties shall agree upon the
termination conditions, including the effective date and in the case of
partial termination, the portion to be terminated, or
(b) By the grantee or subgrantee upon written notification to the
awarding agency, setting forth the reasons for such termination, the
effective date, and in the case of partial termination, the portion to
be terminated. However, if, in the case of a partial termination, the
awarding agency determines that the remaining portion of
[[Page 68]]
the award will not accomplish the purposes for which the award was made,
the awarding agency may terminate the award in its entirety under either
Sec. 602.43 or paragraph (a) of this section.
Subpart D_After-the-Grant Requirements
Sec. 602.50 Closeout.
(a) General. The Federal agency will close out the award when it
determines that all applicable administrative actions and all required
work of the grant has been completed.
(b) Reports. Within 90 days after the expiration or termination of
the grant, the grantee must submit all financial, performance, and other
reports required as a condition of the grant. Upon request by the
grantee, Federal agencies may extend this timeframe. These may include
but are not limited to:
(1) Final performance or progress report.
(2) Financial Status Report (SF 269) or Outlay Report and Request
for Reimbursement for Construction Programs (SF-271) (as applicable).
(3) Final request for payment (SF-270) (if applicable).
(4) Invention disclosure (if applicable).
(5) Federally-owned property report:
In accordance with Sec. 602.32(f), a grantee must submit an inventory
of all federally owned property (as distinct from property acquired with
grant funds) for which it is accountable and request disposition
instructions from the Federal agency of property no longer needed.
(c) Cost adjustment. The Federal agency will, within 90 days after
receipt of reports in paragraph (b) of this section, make upward or
downward adjustments to the allowable costs.
(d) Cash adjustments. (1) The Federal agency will make prompt
payment to the grantee for allowable reimbursable costs.
(2) The grantee must immediately refund to the Federal agency any
balance of unobligated (unencumbered) cash advanced that is not
authorized to be retained for use on other grants.
Sec. 602.51 Later disallowances and adjustments.
The closeout of a grant does not affect:
(a) The Federal agency's right to disallow costs and recover funds
on the basis of a later audit or other review;
(b) The grantee's obligation to return any funds due as a result of
later refunds, corrections, or other transactions;
(c) Records retention as required in Sec. 602.42;
(d) Property management requirements in Sec. Sec. 602.31 and
602.32; and
(e) Audit requirements in Sec. 602.26.
Sec. 602.52 Collection of amounts due.
(a) Any funds paid to a grantee in excess of the amount to which the
grantee is finally determined to be entitled under the terms of the
award constitute a debt to the Federal Government. If not paid within a
reasonable period after demand, the Federal agency may reduce the debt
by:
(1) Making an adminstrative offset against other requests for
reimbursements,
(2) Withholding advance payments otherwise due to the grantee, or
(3) Other action permitted by law.
(b) Except where otherwise provided by statutes or regulations, the
Federal agency will charge interest on an overdue debt in accordance
with the Federal Claims Collection Standards (4 CFR Ch. II). The date
from which interest is computed is not extended by litigation or the
filing of any form of appeal.
Subpart E--Entitlements [Reserved]
PART 604_NEW RESTRICTIONS ON LOBBYING--Table of Contents
Subpart A_General
Sec.
604.100 Conditions on use of funds.
604.105 Definitions.
604.110 Certification and disclosure.
Subpart B_Activities by Own Employees
604.200 Agency and legislative liaison.
604.205 Professional and technical services.
604.210 Reporting.
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Subpart C_Activities by Other Than Own Employees
604.300 Professional and technical services.
Subpart D_Penalties and Enforcement
604.400 Penalties.
604.405 Penalty procedures.
604.410 Enforcement.
Subpart E_Exemptions
604.500 Secretary of Defense.
Subpart F_Agency Reports
604.600 Semi-annual compilation.
604.605 Inspector General report.
Appendix A to Part 604--Certification Regarding Lobbying
Appendix B to Part 604--Disclosure Form To Report Lobbying
Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352); 42 U.S.C.
1870.
Source: 55 FR 6737, 6754, Feb. 26, 1990, unless otherwise noted.
Cross reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
Subpart A_General
Sec. 604.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
Sec. 604.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal
executive departments and agencies as well as independent regulatory
commissions and Government corporations, as defined in 31 U.S.C.
9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of
[[Page 70]]
any Federal contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions
of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
[[Page 71]]
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and
powers.
Sec. 604.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form,
if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000,
unless such person previously filed a certification, and a disclosure
form, if required, under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraph (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraph (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement,
shall file a certification, and a disclosure form, if required, to the
next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraph
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section shall be treated as a material representation of fact
upon which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification
[[Page 72]]
or disclosure constitutes a failure to file the required certification
or disclosure, respectively. If a person fails to file a required
certification or disclosure, the United States may pursue all available
remedies, including those authorized by section 1352, title 31, U.S.
Code.
(g) For awards and commitments in process prior to December 23,
1989, but not made before that date, certifications shall be required at
award or commitment, covering activities occurring between December 23,
1989, and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C.
Subpart B_Activities by Own Employees
Sec. 604.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in Sec.
604.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement if
the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended
by Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
Sec. 604.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
604.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement or
an extension, continuation, renewal, amendment, or modification of a
Federal contract, grant, loan, or cooperative agreement if payment is
for professional or technical services rendered directly in the
preparation, submission, or negotiation of any bid, proposal, or
application for that Federal contract, grant, loan, or cooperative
agreement or for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal contract, grant, loan, or
cooperative agreement.
(b) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal
[[Page 73]]
by a lawyer is allowable. Similarly, technical advice provided by an
engineer on the performance or operational capability of a piece of
equipment rendered directly in the negotiation of a contract is
allowable. However, communications with the intent to influence made by
a professional (such as a licensed lawyer) or a technical person (such
as a licensed accountant) are not allowable under this section unless
they provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
Sec. 604.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
Subpart C_Activities by Other Than Own Employees
Sec. 604.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
604.100 (a), does not apply in the case of any reasonable payment to a
person, other than an officer or employee of a person requesting or
receiving a covered Federal action, if the payment is for professional
or technical services rendered directly in the preparation, submission,
or negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in Sec. 604.110 (a) and (b)
regarding filing a disclosure form by each person, if required, shall
not apply with respect to professional or technical services rendered
directly in the preparation, submission, or negotiation of any
commitment providing for the United States to insure or guarantee a
loan.
(c) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting or a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of
[[Page 74]]
his or her client's proposal, but generally advocate one proposal over
another are not allowable under this section because the lawyer is not
providing professional legal services. Similarly, communications with
the intent to influence made by an engineer providing an engineering
analysis prior to the preparation or submission of a bid or proposal are
not allowable under this section since the engineer is providing
technical services but not directly in the preparation, submission or
negotiation of a covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
Subpart D_Penalties and Enforcement
Sec. 604.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
Appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section
shall be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
Sec. 604.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
Sec. 604.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
Subpart E_Exemptions
Sec. 604.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
[[Page 75]]
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
Subpart F_Agency Reports
Sec. 604.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see Appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and
Budget (OMB), are required to provide machine-readable compilations to
the Secretary of the Senate and the Clerk of the House of
Representatives no later than with the compilations due on May 31, 1991.
OMB shall provide detailed specifications in a memorandum to these
agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
Sec. 604.605 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year, commencing with submission of the President's
Budget in 1991, an evaluation of the compliance of that agency with, and
the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that may be necessary to strengthen or
improve the requirements.
(b) In the case of an agency that does not have an Inspector
General, the agency official comparable to an Inspector General shall
prepare and submit the annual report, or, if there is no such comparable
official, the head of the agency shall prepare and submit the annual
report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
[[Page 76]]
Sec. Appendix A to Part 604--Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
in connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form-LLL,
``Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ``Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required statement shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
[[Page 77]]
Sec. Appendix B to Part 604--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC01JA91.007
[[Page 78]]
[GRAPHIC] [TIFF OMITTED] TC01JA91.008
[[Page 79]]
[GRAPHIC] [TIFF OMITTED] TC01JA91.009
[[Page 80]]
PART 605_NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A_General Provisions
Sec.
605.0 Adoption of HHS regulations.
605.1 Purpose.
605.2 Application.
605.3 Definitions.
605.4 Discrimination prohibited.
605.5 Assurances required.
605.6 Remedial action, voluntary action, and self-evaluation.
605.7 Designation of responsible employee and adoption of grievance
procedures.
605.8 Notice.
605.9 Administrative requirements for small recipients.
605.10 Effect of state or local law or other requirements and effect of
employment opportunities.
Subpart B_Employment Practices
605.11 Discrimination prohibited.
605.12 Reasonable accommodation.
605.13 Employment criteria.
605.14 Preemployment inquiries.
605.15-605.20 [Reserved]
Subpart C_Accessibility
605.21 Discrimination prohibited.
605.22 Existing facilities.
605.23 New construction.
605.24-605.30 [Reserved]
Subpart D_Preschool, Elementary, and Secondary Education
605.31 Application of this subpart.
605.32 Location and notification.
605.33 Free appropriate public education.
605.34 Educational setting.
605.35 Evaluation and placement.
605.36 Procedural safeguards.
605.37 Nonacademic services.
605.38 Preschool and adult education.
605.39 Private education.
605.40 [Reserved]
Subpart E_Postsecondary Education
605.41 Application of this subpart.
605.42 Admissions and recruitment.
605.43 Treatment of students; general.
605.44 Academic adjustments.
605.45 Housing.
605.46 Financial and employment assistance to students.
605.47 Nonacademic services.
605.48-605.50 [Reserved]
Subpart F_Health, Welfare, and Social Services
605.51 Application of this subpart.
605.52 Health, welfare, and other social services.
605.53 Drug and alcohol addicts.
605.54 Education of institutionalized persons.
605.55-605.60 [Reserved]
Subpart G_Procedures
605.61 Procedures.
605.62-605.90 [Reserved]
Authority: 29 U.S.C. 794.
Source: 47 FR 8573, Mar. 1, 1982, unless otherwise noted.
Subpart A_General Provisions
Sec. 605.0 Adoption of HHS regulations.
The regulations of the Department of Health and Human Services on
Nondiscrimination on the Basis of Handicap, 45 CFR part 84, including
any amendments thereto, have been adopted almost in their entirety to
programs or activities receiving Federal financial assistance from the
National Science Foundation. The few changes in the Foundation's rules
include a newly added sub-paragraph (5) to paragraph (k) of Sec. 605.3;
and modifications in paragraph (j), Sec. 605.3; paragraph (a) of Sec.
605.5; paragraph (b) of Sec. 605.46; and Sec. 605.61. Paragraph (c) of
Sec. 605.5 has been removed, and ``qualified handicapped persons'' has
been substituted for ``handicapped persons'' wherever that phrase
appears in Sec. 605.4(b)(5) and in Subpart C (Sec. Sec. 605.21 through
605.23). The date for compliance with Sec. 605.33(d) has been changed.
[47 FR 8573, Mar. 1, 1982, as amended at 61 FR 51021, Sept. 30, 1996; 68
FR 51381, Aug. 26, 2003]
Sec. 605.1 Purpose.
The purpose of this part is to effectuate section 504 of the
Rehabilitation Act of 1973, which is designed to eliminate
discrimination on the basis of handicap in any program or activity
receiving Federal financial assistance.
Sec. 605.2 Application.
This part applies to each recipient of Federal financial assistance
from the National Science Foundation and to
[[Page 81]]
each program or activity that receives such assistance.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.3 Definitions.
As used in this part, the term:
(a) The Act means the Rehabilitation Act of 1973, Public Law 93-112,
as amended by the Rehabilitation Act Amendments of 1974, Public Law 93-
516, 29 U.S.C. 794.
(b) Section 504 means section 504 of the Act.
(c) Education of the Handicapped Act means that statute as amended
by the Education for all Handicapped Children Act of 1975, Public Law
94-142, 20 U.S.C. 1401 et seq.
(d) Foundation means the National Science Foundation.
(e) Director means the Director of the National Science Foundation.
(f) Recipient means any state or its political subdivision, any
instrumentality of a state or its political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or
through another recipient, including any successor, assignee, or
transferee of a recipient, but excluding the ultimate beneficiary of the
assistance.
(g) Applicant for assistance means one who submits an application,
request, or plan required to be approved by a Foundation official or by
a recipient as a condition to becoming a recipient.
(h) Federal financial assistance means any grant, loan, contract
(other than a procurement contract or a contract of insurance or
guaranty), or any other arrangement by which the Foundation provides or
otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if the Federal share of its fair market value is not returned to the
Federal Government.
(i) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property.
(j) Handicapped person. (1) Handicapped persons means any person in
the United States who (i) has a physical or mental impairment which
substantially limits one or more major life activities, (ii) has a
record of such an impairment, or (iii) is regarded as having such an
impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i) Physical or mental impairment means (A) any physiological
disorder or condition, cosmetic disfigurement, or anatomical loss
affecting one or more of the following body systems: neurological;
musculoskeletal; special sense organs; respiratory, including speech
organs; cardiovascular; reproductive, digestive, genito-urinary; hemic
and lymphatic; skin; and endocrine; or (B) any mental or psychological
disorder, such as mental retardation, organic brain syndrome, emotional
or mental illness, and specific learning disabilities.
(ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(iii) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(iv) Is regarded as having an impairment means (A) has a physical or
mental impairment that does not subtantially limit major life activities
but that is treated by a recipient as constituting such a limitation;
(B) has a physical or mental impairment that substantially limits major
life activities only as a result of the attitudes of others toward such
impairment; or (C) has none of the impairments defined in paragraph
(j)(2)(i) of this section but is treated by a recipient as having such
an impairment.
(k) Qualified handicapped person means:
[[Page 82]]
(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
in question;
(2) With respect to public preschool elementary, secondary, or adult
educational services, a handicapped person (i) of an age during which
nonhandicapped persons are provided such services, (ii) of any age
during which it is mandatory under state law to provide such services to
handicapped persons, or (iii) to whom a state is required to provide a
free appropriate public education under section 612 of the Education of
the Handicapped Act; and
(3) With respect to postsecondary and vocational education services,
a handicapped person who meets the academic and technical standards
requisite to admission or participation in the recipient's education
program or activity;
(4) With respect to other services, a handicapped person who meets
the essential eligibility requirements for the receipt of such services.
(5) With respect to scientific and technical experimentation,
observation, or field work a person who meets the academic, scientific
and technical standards for participation and any reasonable physical
qualifications for participation. Physical qualifications are not
``reasonable,'' however, if they can be obviated without unreasonable
burden by modifying facilities or aid, benefits, or services or by
providing auxiliary aids. In determining whether the burdens are
unreasonable, factors such as cost, risks, or sacrifice of legitimate
objectives may be considered. In exceptional cases psychological
qualifications may be considered `reasonable physical qualifications'
under this paragraph. Nothing in this provision or these regulations
requires reversal of scientific judgments on research, including choice
of experiments, protocols for experiments, location of observing sites,
or the like that are considered necessary to any line of scientific
inquiry by the research scientists involved.
(l) Handicap means any condition or characteristic that renders a
person a handicapped person as defined in paragraph (j) of this section.
(m) Program or activity means all of the operations of any entity
described in paragraphs (m)(1) through (4) of this section, any part of
which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (m)(1), (2), or (3) of this section.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51380, Aug. 26, 2003]
Sec. 605.4 Discrimination prohibited.
(a) General. No qualified handicapped person shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity which receives Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient, in providing
any aid, benefit, or service, may not, directly or
[[Page 83]]
through contractual, licensing, or other arrangements, on the basis of
handicap:
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons unless such
action is necessary to provide qualified handicapped persons with aid,
benefits, or services that are as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped
person by providing significant assistance to an agency, organization,
or person that discriminates on the basis of handicap in providing any
aid, benefit, or service to beneficiaries of the recipient's program or
activity;
(vi) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped person in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving an aid, benefit, or service.
(2) For purposes of this part, aids, benefits, and services, to be
equally effective, are not required to produce the identical result or
level of achievement for handicapped and nonhandicapped persons, but
must afford handicapped persons equal opportunity to obtain the same
result, to gain the same benefit, or to reach the same level of
achievement, in the most integrated setting appropriate to the person's
needs.
(3) Despite the existence of separate or different aid, benefits, or
services provided in accordance with this part, a recipient may not deny
a qualified handicapped person the opportunity to participate in such
programs or activities that are not separate or different.
(4) A recipient may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration (i) that
have the effect of subjecting qualified handicapped persons to
discrimination on the basis of handicap, (ii) that have the purpose or
effect of defeating or substantially impairing accomplishment of the
objectives of the recipient's program or activity with respect to
handicapped persons, or (iii) that perpetuate the discrimination of
another recipient if both recipients are subject to common
administrative control or are agencies of the same State.
(5) In determining the site or location of a facility, an applicant
for assistance or a recipient may not make selections (i) that have the
effect of excluding qualified handicapped persons from, denying them the
benefits of, or otherwise subjecting them to discrimination under any
program or activity that receives Federal financial assistance or (ii)
that have the purpose or effect of defeating or substantially impairing
the accomplishment of the objectives of the program or activity with
respect to qualified handicapped persons.
(6) As used in this section, the aid, benefit, or service provided
under a program or activity receiving Federal financial assistance
includes any aid, benefit, or service provided in or through a facility
that has been constructed, expanded, altered, leased or rented, or
otherwise acquired, in whole or in part, with Federal financial
assistance.
(c) Aid, benefits, or services limited by Federal law. The exclusion
of nonhandicapped persons from aid, benefits, or services limited by
Federal statute or executive order to handicapped persons or the
exclusion of a specific class of handicapped persons from aid, benefits,
or services limited by Federal statute or executive order to a different
class of handicapped persons is not prohibited by this part.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
[[Page 84]]
Sec. 605.5 Assurances required.
(a) Assurances. Recipients of Federal financial assistance to which
this part applies will assure NSF, in a manner specified by the
Director, that the programs or activities will be operated in compliance
with this part.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended in the form of real property or to provide real
property or structures on the property, the assurance will obligate the
recipient or, in the case of a subsequent transfer, the transferee, for
the period during which the real property or structures are used for the
purpose for which Federal financial assistance is extended or for
another purpose involving the provision of similar services or benefits.
(2) In the case of Federal financial assistance extended to provide
personal property, the assurance will obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases the assurance will obligate the recipient for
the period during which Federal financial assistance is extended.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.6 Remedial action, voluntary action, and self-evaluation.
(a) Remedial action. (1) If the Director finds that a recipient has
discriminated against persons on the basis of handicap in violation of
section 504 or this part, the recipient shall take such remedial action
as the Director deems necessary to overcome the effects of the
discrimination.
(2) Where a recipient is found to have discriminated against persons
on the basis of handicap in violation of section 504 or this part and
where another recipient exercises control over the recipient that has
discriminated, the Director, where appropriate, may require either or
both recipients to take remedial action.
(3) The Director may, where necessary to overcome the effects of
discrimination in violation of section 504 or this part, require a
recipient to take remedial action (i) with respect to handicapped
persons who are no longer participants in the recipient's program or
activity but who were participants in the program when such
discrimination occurred or (ii) with respect to handicapped persons who
would have been participants in the program or activity had the
discrimination not occurred.
(b) Voluntary action. A recipient may take steps, in addition to any
action that is required by this part, to overcome the effects of
conditions that resulted in limited participation in the recipient's
program or activity by qualified handicapped persons.
(c) Self-evaluation. (1) A recipient shall, within one year of the
effective date of this part:
(i) Evaluate, with the assistance of interested persons, including
handicapped persons or organizations representing handicapped persons,
its current policies and practices and the effects thereof that do not
or may not meet the requirements of this part;
(ii) Modify, after consultation with interested persons, including
handicapped persons or organizations representing handicapped persons,
any policies and practices that do not meet the requirements of this
part; and
(iii) Take, after consultation with interested persons, including
handicapped persons or organizations representing handicapped persons,
appropriate remedial steps to eliminate the effects of any
discrimination that resulted from adherence to these policies and
practices.
(2) A recipient that employs fifteen or more persons shall, for at
least three years following completion of the evaluation required under
paragraph (c)(1) of this section, maintain on file, make available for
public inspection, and provide to the Director upon request: (i) A list
of the interested person consulted (ii) a description of areas examined
and any problems identified, and (iii) a description of any
modifications made and any remedial steps taken.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.7 Designation of responsible employee and adoption of grievance
procedures.
(a) Designation of responsible employee. A recipient that employs
fifteen or
[[Page 85]]
more persons shall designate at least one person to coordinate its
efforts to comply with this part.
(b) Adoption of grievance procedures. A recipient that employs
fifteen or more persons shall adopt grievance procedures that
incorporate appropriate due process standards and that provide for the
prompt and equitable resolution of complaints alleging any action
prohibited by this part. Such procedures need not be established with
respect to complaints from applicants for employment or from applicants
for admission to postsecondary educational institutions.
Sec. 605.8 Notice.
(a) A recipient that employs fifteen or more persons shall take
appropriate initial and continuing steps to notify participants,
beneficiaries, applications, and employees, including those with
impaired vision or hearing, and unions or professional organizations
holding collective bargaining or professional agreements with the
recipient that it does not discriminate on the basis of handicap in
violation of section 504 and this part. The notification shall state,
where appropriate, that the recipient does not discriminate in admission
or access to, or treatment or employment in, its programs or activities.
The notification shall also include an identification of the responsible
employee designated pursuant to Sec. 605.7(a). A recipient shall make
the initial notification required by this paragraph within 90 days of
the effective date of this part. Methods of initial and continuing
notification may include the posting of notices, publication in
newspapers and magazines, placement of notices in recipient's
publication, and distribution of memoranda or other written
communications.
(b) If a recipient publishes or uses recruitment materials or
publications containing general information that it makes available to
participants, beneficiaries, applicants, or employees, it shall include
in those materials or publications a statement of the policy described
in paragraph (a) of this section. A recipient may meet the requirement
of this paragraph either by including appropriate inserts in existing
materials and publications or by revising and reprinting the materials
and publications.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.9 Administrative requirements for small recipients.
The Director may require any recipient with fewer than fifteen
employees, or any class of such recipients, to comply with Sec. Sec.
605.7 and 605.8, in whole or in part, when the Director finds a
violation of this part or finds that such compliance will not
significantly impair the ability of the recipient or class or recipients
to provide benefits or services.
Sec. 605.10 Effect of state or local law or other requirements and
effect of employment opportunities.
(a) The obligation to comply with this part is not obviated or
alleviated by the existence of any state or local law or other
requirement that, on the basis of handicap, imposes prohibitions or
limits upon the eligibility of qualified handicapped persons to receive
services or to practice any occupation or profession.
(b) The obligation to comply with this part is not obviated or
alleviated because employment opportunities in any occupation or
profession are or may be more limited for handicapped persons than for
nonhandicapped persons.
Subpart B_Employment Practices
Sec. 605.11 Discrimination prohibited.
(a) General. (1) No qualified handicapped person shall, on the basis
of handicap, be subjected to discrimination in employment under any
program or activity to which this part applies.
(2) A recipient that receives assistance under the Education of the
Handicapped Act shall take positive steps to employ and advance in
employment qualified handicapped persons in programs or activities
assisted under that Act.
(3) A recipient shall make all decisions concerning employment under
any program or activity to which this part applies in a manner which
ensures that discrimination on the basis of handicap does not occur and
may not
[[Page 86]]
limit, segregate, or classify applicants or employees in any way that
adversely affects their opportunities or status because of handicap.
(4) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination prohibited by this subpart.
The relationships referred to in this subparagraph include relationships
with employment and referral agencies, with labor unions, with
organizations providing or administering fringe benefits to employees of
the recipient, and with organizations providing training and
apprenticeships.
(b) Specific activities. The provisions of this subpart apply to:
(1) Recruitment, advertising, and the processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff and rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(7) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, and selection for leaves of absence to pursue training;
(8) Employer sponsored activities, including those that are social
or recreational; and
(9) Any other term, condition, or privilege of employment.
(c) A recipient's obligation to comply with this subpart is not
affected by any inconsistent term of any collective bargaining agreement
to which it is a party.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.12 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified handicapped
applicant or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program or activity.
(b) Reasonable accommodation may include: (1) Making facilities used
by employees readily accessible to and usable by handicapped persons,
and (2) job restructuring, part-time or modified work schedules,
acquisition or modification or equipment or devices, the provision of
readers or interpreters, and other similar actions.
(c) In determining pursuant to paragraph (a) of this section whether
an accommodation would impose an undue hardship on the operation of a
recipient's program or activity, factors to be considered include:
(1) The overall size of the recipient's program or activity with
respect to number of employees, number and type of facilities, and size
of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's workforce; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a
qualified handicapped employee or applicant if the basis for the denial
is the need to make reasonable accommodation to the physical or mental
limitations of the employee or applicant.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.13 Employment criteria.
(a) A recipient may not make use of any employment test or other
selection criterion that screens out or tends to screen out handicapped
persons or any class of handicapped persons unless: (1) The test score
or other selection criterion, as used by the recipient, is shown to be
job-related for the position in question, and (2) alternative job-
related tests or criteria that do not screen out or tend to screen out
as many handicapped persons are not shown by the Director to be
available.
[[Page 87]]
(b) A recipient shall select and administer tests concerning
employment so as best to ensure that, when administered to an applicant
or employee who has a handicap that impairs sensory, manual, or speaking
skills, the test results accurately reflect the applicant's or
employee's job skills, aptitude, or whatever other factor the test
purports to measure, rather than reflecting the applicant's or
employee's impaired sensory, manual, or speaking skills (except where
those skills are the factors that the test purports to measure).
Sec. 605.14 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct a preemployment medical examination or may not
make preemployment inquiry of an applicant as to whether the applicant
is a handicapped person or as to the nature or severity of a handicap. A
recipient may, however, make preemployment inquiry into an applicant's
ability to perform job-related functions.
(b) When a recipient is taking remedial action to correct the
effects of past discrimination pursuant to Sec. 605.6(a), when a
recipient is taking voluntary action to overcome the effects of
conditions that resulted in limited participation in its federally
assisted program or activity pursuant to Sec. 605.6(b), or when a
recipient is taking affirmative action pursuant to section 503 of the
Act, the recipient may invite applicants for employment to indicate
whether and to what extent they are handicapped, Provided, That:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally if no written questionnaire is
used that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary or
affirmative action efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential as
provided in paragraph (d) of this section, that refusal to provide it
will not subject the applicant or employee to any adverse treatment, and
that it will be used only in accordance with this part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty,
Provided, That: (1) All entering employees are subjected to such an
examination regardless of handicap, and (2) the results of such an
examination are used only in accordance with the requirements of this
part.
(d) Information obtained in accordance with this section as to the
medical condition or history of the applicant shall be collected and
maintained on separate forms that shall be accorded confidentiality as
medical records, except that:
(1) Supervisors and managers may be informed regarding restrictions
on the work or duties of handicapped persons and regarding necessary
accommodations;
(2) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(3) Government officials investigating compliance with the Act shall
be provided relevant information upon request.
Sec. Sec. 605.15-605.20 [Reserved]
Subpart C_Accessibility
Sec. 605.21 Discrimination prohibited.
No qualified handicapped person shall, because a recipient's
facilities are inaccessible to or unusable by handicapped persons, be
denied the benefits of, be excluded from participation in, or otherwise
be subjected to discrimination under any program or activity to which
this part applies.
Sec. 605.22 Existing facilities.
(a) Accessibility. A recipient shall operate each program or
activity to which this part applies so that when each part is viewed in
its entirety it is readily accessible to qualified handicapped persons.
This paragraph does not require a recipient to make each of its existing
facilities or every part of a facility accessible to and usable by
qualified handicapped persons.
(b) Methods. A recipient may comply with the requirements of
paragraph (a)
[[Page 88]]
of this section through such means as redesign of equipment,
reassignment of classes or other services to accessible buildings,
assignment of aides to beneficiaries, home visits, delivery of health,
welfare, or other social services at alternate accessible sites,
alteration of existing facilities and construction of new facilities in
conformance with the requirements of Sec. 605.23, or any other methods
that result in making its program or activity accessible to qualified
handicapped persons. A recipient is not required to make structural
changes in existing facilities where other methods are effective in
achieving compliance with paragraph (a) of this section. In choosing
among available methods for meeting the requirement of paragraph (a) of
this section, a recipient shall give priority to those methods that
serve qualified handicapped persons in the most integrated setting
appropriate.
(c) Small health, welfare, or other social service providers. If a
recipient with fewer than fifteen employees that provides health,
welfare, or other social services finds, after consultation with a
qualified handicapped person seeking its services, that there is no
method of complying with paragraph (a) of this section other than making
a significant alteration in its existing facilities, the recipient may,
as an alternative, refer the qualified handicapped person to other
providers of those services that are accessible.
(d) Time period. A recipient shall comply with the requirement of
paragraph (a) of this section within sixty days of the effective date of
this part except that where structural changes in facilities are
necessary, such changes shall be made within three years of the
effective date of this part, but in any event as expeditiously as
possible.
(e) Transition plan. In the event that structural changes to
facilities are necessary to meet the requirement of paragraph (a) of
this section, a recipient shall develop, within six months of the
effective date of this part, a transition plan setting forth the steps
necessary to complete such changes. The plan shall be developed with the
assistance of interested persons, including qualified handicapped
persons or organizations representing qualified handicapped persons. A
copy of the transition plan shall be made available for public
inspection. The plan shall, at a minimum:
(1) Identify physical obstacles in the recipient's facilities that
limit the accessibility of its program or activity to qualified
handicapped persons;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
full accessibility under paragraph (a) of this section and, if the time
period of the transition plan is longer than one year, identify the
steps of that will be taken during each year of the transition period;
and
(4) Indicate the person responsible for implementation of the plan.
(f) Notice. The recipient shall adopt and implement procedures to
ensure that interested persons, including persons with impaired vision
or hearing, can obtain information as to the existence and location of
services, activities, and facilities that are accessible to and usuable
by qualified handicapped persons.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.23 New construction.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient shall be
designed and constructed in such manner that the facility or part of the
facility is readily accessible to and usable by qualified handicapped
persons, if the construction was commenced after the effective date of
this part.
(b) Alteration. Each facility or part of a facility which is altered
by, on behalf of, or for the use of a recipient after the effective date
of this part in a manner that affects or could affect the usability of
the facility or part of the facility shall, to the maximum extent
feasible, be altered in such manner that the altered portion of the
facility is readily accessible to and usable by qualified handicapped
persons.
(c) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as
[[Page 89]]
of January 18, 1991, design, construction, or alteration of buildings in
conformance with sections 3-8 of the Uniform Federal Accessibility
Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) shall be deemed
to comply with the requirements of this section with respect to those
buildings. Departures from particular technical and scoping requirements
of UFAS by the use of other methods are permitted where substantially
equivalent or greater access to and usability of the building is
provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
[47 FR 8573, Mar. 1, 1982, as amended at 55 FR 52138, 52142, Dec. 19,
1990]
Sec. Sec. 605.24-605.30 [Reserved]
Subpart D_Preschool, Elementary, and Secondary Education
Sec. 605.31 Application of this subpart.
Subpart D applies to preschool, elementary, secondary, and adult
education programs or activities that receive or benefit from Federal
financial assistance and to recipients that operate, or that receive
Federal financial assistance for the operation of, such programs or
activities.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.32 Location and notification.
A recipient that operates a public elementary or secondary education
program shall annually:
(a) Undertake to identify and locate every qualified handicapped
person residing in the recipient's jurisdiction who is not receiving a
public education; and
(b) Take appropriate steps to notify handicapped persons and their
parents or guardians or the recipient's duty under this subpart.
Sec. 605.33 Free appropriate public education.
(a) General. A recipient that operates a public elementary or
secondary education program shall provide a free appropriate public
education to each qualified handicapped person who is in the recipient's
jurisdiction, regardless of the nature or severity of the person's
handicap.
(b) Appropriate education. (1) For the purpose of this subpart, the
provision of an appropriate education is the provision of regular or
special education and related aids and services that (i) are designed to
meet individual educational needs of handicapped persons as adequately
as the needs of nonhandicapped persons are met and (ii) are based upon
adherence to procedures that satisfy the requirements of Sec. Sec.
605.34, 605.35 and 605.36.
(2) Implementation of an Individualized Education Program developed
in accordance with the Education of the Handicapped Act is one means of
meeting the standard established in paragraph (b)(1)(i) of this section.
(3) A recipient may place a handicapped person or refer such person
for aid, benefits, or services other than those that it operates or
provides as its means of carrying out the requirements of this subpart.
If so, the recipient remains responsible for ensuring that the
requirements of this subpart are met with respect to any handicapped
person so placed or referred.
(c) Free education--(1) General. For the purpose of this section,
the provision of a free education is the provision of educational and
related services without cost to the handicapped person or to his or her
parents or guardian, except for those fees that are imposed on non-
handicapped persons or their parents or guardian. It may consist either
of the provision of free services or, if a recipient places a
handicapped person or refers such person for aid, benefits, or services
not operated or provided by the recipient as its means of carrying out
the requirements of this subpart, of
[[Page 90]]
payment for the costs of the aid, benefits, or services. Funds available
from any public or private agency may be used to meet the requirements
of this subpart. Nothing in this section shall be construed to relieve
an insurer or similar third party from an otherwise valid obligation to
provide or pay for services provided to a handicapped person.
(2) Transportation. If a recipient places a handicapped person or
refers such person for aid, benefits, or services not operated or
provided by the recipient as its means of carrying out the requirements
of this subpart, the recipient shall ensure that adequate transportation
to and from the aid, benefits, or services is provided at no greater
cost than would be incurred by the person or his or her parents or
guardian if the person were placed in the program operated by the
recipient.
(3) Residential placement. If a public or private residential
placement is necessary to provide a free appropriate public education to
a handicapped person because of his or her handicap, the placement,
including non-medical care and room and board, shall be provided at no
cost to the person or his or her parents or guardian.
(4) Placement of handicapped persons by parents. If a recipient has
made available, in conformance with the requirements of this section and
Sec. 605.34, a free appropriate public education to a handicapped
person and the person's parents or guardian chooses to place the person
in a private school, the recipient is not required to pay for the
person's education in the private school. Disagreements between a parent
or guardian and a recipient regarding whether the recipient has made a
free appropriate public education available or otherwise regarding the
question of financial responsibility are subject to the due process
procedures of Sec. 605.36.
(d) Compliance. A recipient may not exclude any qualified
handicapped person from a public elementary or secondary education after
the effective date of this part. A recipient that is not, on the
effective date of this regulation, in full compliance with the other
requirements of the preceding paragraphs of this section shall meet such
requirements at the earliest practicable time and in no event later than
July 1, 1983.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.34 Educational setting.
(a) Academic setting. A recipient to which this subpart applies
shall educate, or shall provide for the education of, each qualified
handicapped person in its jurisdiction with persons who are not
handicapped to the maximum extent appropriate to the needs of the
handicapped person. A recipient shall place a handicapped person in the
regular educational environment operated by the recipient unless it is
demonstrated by the recipient that the education of the person in the
regular environment with the use of supplementary aids and services
cannot be achieved satisfactorily. Whenever a recipient places a person
in a setting other than the regular educational environment pursuant to
this paragraph, it shall take into account the proximity of the
alternate setting to the person's home.
(b) Nonacademic settings. In providing or arranging for the
provision of nonacademic and extracurricular services and activities,
including meals, recess periods, and the services and activities set
forth in Sec. 605.37(a)(2), a recipient shall ensure that handicapped
persons participate with nonhandicapped persons in such activities and
services to the maximum extent appropriate to the needs of the
handicapped person in question.
(c) Comparable facilities. If a recipient, in compliance with
paragraph (a) of this section, operates a facility that is identifiable
as being for handicapped persons, the recipient shall ensure that the
facility and the services and activities provided therein are comparable
to the other facilities, services, and activities of the recipient.
Sec. 605.35 Evaluation and placement.
(a) Preplacement evaluation. A recipient that operates a public
elementary or secondary education program or activity shall conduct an
evaluation in accordance with the requirements of paragraph (b) of this
section of any person who, because of handicap, needs or
[[Page 91]]
is believed to need special education or related services before taking
any action with respect to the initial placement of the person in
regular or special education and any subsequent significant change in
placement.
(b) Evaluation procedures. A recipient to which this subpart applies
shall establish standards and procedures for the evaluation and
placement of persons who, because of handicap, need or are believed to
need special education or related services which ensure that:
(1) Tests and other evaluation materials have been validated for the
specific purpose for which they are used and are administered by trained
personnel in conformance with the instructions provided by their
producer;
(2) Tests and other evaluation materials include those tailored to
assess specific areas of educational need and not merely those which are
designed to provide a single general intelligence quotient; and
(3) Tests are selected and administered so as best to ensure that,
when a test is administered to a student with impaired sensory, manual,
or speaking skills, the test results accurately reflect the student's
aptitude or achievement level or whatever other factor the test purports
to measure, rather than reflecting the student's impaired sensory,
manual, or speaking skills (except where those skills are the factors
that the test purports to measure).
(c) Placement procedures. In interpreting evaluation data and in
making placement decisions, a recipient shall (1) draw upon information
from a variety of sources, including aptitude and achievement tests,
teacher recommendations, physical condition, social or cultural
background, and adaptive behavior, (2) establish procedures to ensure
that information obtained from all such sources is documented and
carefully considered, (3) ensure that the placement decision is made by
a group of persons, including persons knowledgeable about the child, the
meaning of the evaluation data, and the placement options, and (4)
ensure that the placement decision is made in conformity with Sec.
605.34.
(d) Reevaluation. A recipient to which this section applies shall
establish procedures, in accordance with paragraph (b) of this section,
for periodic reevaluation of students who have been provided special
education and related services. A reevaluation procedure consistent with
the Education for the Handicapped Act is one means of meeting this
requirement.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.36 Procedural safeguards.
A recipient that operates a public elementary or secondary education
program shall establish and implement, with respect to actions regarding
the identification, evaluation, or educational placement of persons who,
because of handicap, need or are believed to need special instruction or
related services, a system of procedural safeguards that includes
notice, an opportunity for the parents or guardian of the person to
examine relevant records, an impartial hearing with opportunity for
participation by the person's parents or guardian and representation by
counsel, and a review procedure. Compliance with the procedural
safeguards of section 615 of the Education of the Handicapped Act is one
means of meeting this requirement.
Sec. 605.37 Nonacademic services.
(a) General. (1) A recipient to which this subpart applies shall
provide nonacademic and extracurricular services and activities in such
manner as is necessary to afford handicapped students an equal
opportunity for participation in such services and activities.
(2) Nonacademic and extracurricular services and activities may
include counseling services, physical recreational athletics,
transportation, health services, recreational activities, special
interest groups or clubs sponsored by the recipients, referrals to
agencies which provide assistance to handicapped persons, and employment
of students, including both employment by the recipient and assistance
in making available outside employment.
(b) Counseling services. A recipient to which this subpart applies
that provides personal, academic, or vocational counseling, guidance, or
placement services to its students shall provide these services without
discrimination on the basis of handicap. The recipient
[[Page 92]]
shall ensure that qualified handicapped students are not counseled
toward more restrictive career objectives than are nonhandicapped
students with similar interests and abilities.
(c) Physical education and athletics. (1) In providing physical
education courses and athletics and similar aid, benefits, or services
to any of its students, a recipient to which this subpart applies may
not discriminate on the basis of handicap. A recipient that offers
physical education courses or that operates or sponsors interscholastic,
club, or intramural athletics shall provide to qualified handicapped
students an equal opportunity for participation.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different from those
offered to nonhandicapped students only if separation or differentiation
is consistent with the requirements of Sec. 605.34 and only if no
qualified handicapped student is denied the opportunity to compete for
teams or to participate in courses that are not separate or different.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.38 Preschool and adult education.
A recipient to which this subpart applies that provides preschool
education or day care or adult education may not, on the basis of
handicap, exclude qualified handicapped persons and shall take into
account the needs of such persons in determining the aid, benefits, or
services to be provided.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.39 Private education.
(a) A recipient that provides private elementary or secondary
education may not, on the basis of handicap, exclude a qualified
handicapped person if the person can, with minor adjustments, be
provided an appropriate education, as defined in Sec. 605.33(b)(1),
within that recipient's program or activity.
(b) A recipient to which this section applies may not charge more
for the provision of an appropriate education to handicapped persons
than to nonhandicapped persons except to the extent that any additional
charge is justified by a substantial increase in cost to the recipient.
(c) A recipient to which this section applies that provides special
education shall do so in accordance with the provisions of Sec. Sec.
605.35 and 605.36. Each recipient to which this section applies is
subject to the provisions of Sec. Sec. 605.34, 605.37 and 605.38.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.40 [Reserved]
Subpart E_Postsecondary Education
Sec. 605.41 Application of this subpart.
Subpart E applies to postsecondary education programs or activities,
including postsecondary vocational education programs or activities,
that receive Federal financial assistance and to recipients that
operate, or that receive Federal financial assistance for the operation
of, such programs or activities.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.42 Admissions and recruitment.
(a) General. Qualified handicapped persons may not, on the basis of
handicap, be denied admission or be subjected to discrimination in
admission or recruitment by a recipient to which this subpart applies.
(b) Admissions. In administering its admission policies, a recipient
to which this subpart applies:
(1) May not apply limitations upon the number or proportion of
handicapped persons who may be admitted;
(2) May not make use of any test or criterion for admission that has
a disproportionate, adverse effect on handicapped persons or any class
of handicapped persons unless (i) the test or criterion, as used by the
recipient, has been validated as a predictor of success in the education
program or activity in question and (ii) alternate tests or criteria
that have a less disproportionate, adverse effect are not shown by the
Director to be available.
[[Page 93]]
(3) Shall assure itself that (i) admissions tests are selected and
administered so as best to ensure that, when a test is administered to
an applicant who has a handicap that impairs sensory, manual, or
speaking skills, the test results accurately reflect the applicant's
aptitude or achievement level or whatever other factor the test purports
to measure, rather than reflecting the applicant's impaired sensory,
manual, or speaking skills (except where those skills are the factors
that the test purports to measure); (ii) admissions tests that are
designed for persons with impaired sensory, manual, or speaking skills
are offered as often and in as timely a manner as are other admissions
tests; and (iii) admissions tests are administered in facilities that,
on the whole, are accessible to handicapped persons; and
(4) Except as provided in paragraph (c) of this section, may not
make preadmission inquiry as to whether an applicant for admission is a
handicapped person but, after admission, may make inquiries on a
confidential basis as to handicaps that may require accommodation.
(c) Preadmission inquiry exception. When a recipient is taking
remedial action to correct the effects of past discrimination pursuant
to Sec. 605.6(a) or when a recipient is taking voluntary action to
overcome the effects of conditions that resulted in limited
participation in its federally assisted program or activity pursuant to
Sec. 605.6(6), the recipient may invite applicants for admission to
indicate whether and to what extent they are handicapped, Provided,
That:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally if no written questionnaire is
used that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary action
efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential, that
refusal to provide it will not subject the applicant to any adverse
treatment, and that it will be used only in accordance with this part.
(d) Validity studies. For the purpose of paragraph (b)(2) of this
section, a recipient may base prediction equations on first year grades,
but shall conduct periodic validity studies against the criterion of
overall success in the education program or activity in question in
order to monitor the general validity of the test scores.
Sec. 605.43 Treatment of students; general.
(a) No qualified handicapped student shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any academic,
research, occupational training, housing, health insurance, counseling,
financial aid, physical education, athletics, recreation,
transportation, other extracurricular, or other postsecondary education
aid, benefits, or services to which this subpart applies.
(b) A recipient to which this subpart applies that considers
participation by students in education programs or activities not
operated wholly by the recipient as part of, or equivalent to, an
education program or activity operated by the recipient shall assure
itself that the other education program or activity, as a whole,
provides an equal opportunity for the participation of qualified
handicapped persons.
(c) A recipient to which this subpart applies may not, on the basis
of handicap, exclude any qualified handicapped student from any course,
course of study, or other part of its education program or activity.
(d) A recipient to which this subpart applies shall operate its
program or activity in the most integrated setting appropriate.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.44 Academic adjustments.
(a) Academic requirements. A recipient to which this subpart applies
shall make such modifications to its academic requirements as are
necessary to ensure that such requirements do not discriminate or have
the effect of discriminating, on the basis of handicap,
[[Page 94]]
against a qualified handicapped applicant or student. Academic
requirements that the recipient can demonstrate are essential to the
instruction being pursued by such student or to any directly related
licensing requirement will not be regarded as discriminatory within the
meaning of this section. Modifications may include changes in the length
of time permitted for the completion of degree requirements,
substitution of specific courses required for the completion of degree
requirements, and adaptation of the manner in which specific courses are
conducted.
(b) Other rules. A recipient to which this subpart applies may not
impose upon handicapped students other rules, such as the prohibition of
tape recorders in classrooms or of dog guides in campus buildings, that
have the effect of limiting the participation of handicapped students in
the recipient's education program or activity.
(c) Course examinations. In its course examinations or other
procedures for evaluating students' academic achievement, a recipient to
which this subpart applies shall provide such methods for evaluating the
achievement of students who have a handicap that impairs sensory,
manual, or speaking skills as will best ensure that the results of the
evaluation represents the student's achievement in the course, rather
than reflecting the student's impaired sensory, manual, or speaking
skills (except where such skills are the factors that the test purports
to measure).
(d) Auxiliary aids. (1) A recipient to which this subpart applies
shall take such steps as are necessary to ensure that no handicapped
student is denied the benefits of, excluded from participation in, or
otherwise subjected to discrimination under the education program or
activity operated by the recipient because of the absence of educational
auxiliary aids for students with impaired sensory, manual, or speaking
skills.
(2) Auxiliary aids may include taped texts, interpreters or other
effective methods of making orally delivered materials available to
students with hearing impairments, readers in libraries for students
with visual impairments, classroom equipment adapted for use by students
with manual impairments, and other similar services and actions.
Recipients need not provide attendents, individually prescribed devices,
readers for personal use or study, or other devices or services of a
personal nature.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.45 Housing.
(a) Housing provided by the recipient. A recipient that provides
housing to its nonhandicapped students shall provide comparable,
convenient, and accessible housing to handicapped students at the same
cost as to others. At the end of the transition period provided for in
subpart C, such housing shall be available in sufficient quantity and
variety so that the scope of handicapped students' choice of living
accommodations is, as a whole, comparable to that of nonhandicapped
students.
(b) Other housing. A recipient that assists any agency,
organization, or person in making housing available to any of its
students shall take such action as may be necessary to assure itself
that such housing is, as a whole, made available in a manner that does
not result in discrimination on the basis of handicap.
Sec. 605.46 Financial and employment assistance to students.
(a) Provision of financial assistance. (1) In providing financial
assistance to qualified handicapped persons, a recipient to which this
subpart applies may not (i), on the basis of handicap, provide less
assistance than is provided to nonhandicapped persons, limit eligibility
for assistance, or otherwise discriminate or (ii) assist any entity or
person that provides assistance to any of the recipient's students in a
manner that discriminates against qualified handicapped persons on the
basis of handicap.
(2) A recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established under wills, trusts, bequests, or similar legal instruments
that require awards to be made on the basis of factors that discriminate
or have the effect of discriminating on the basis of handicap
[[Page 95]]
only if the overall effect of the award of scholarships, fellowships,
and other forms of financial assistance is not discriminatory on the
basis of handicap.
(b) Assistance in making available outside employment. A recipient
that helps its students to obtain employment shall assure itself that
the employment opportunities it helps to make available to students are,
as a whole, made available in a manner that would not violate subpart B
if they were provided by the recipient.
(c) Employment of students by recipients. A recipient that employs
any of its students may not do so in a manner that violates subpart B.
Sec. 605.47 Nonacademic services.
(a) Physical education and athletics. (1) In providing physical
education courses and athletics and similar aid, benefits, or services
to any of its students, a recipient to which this subpart applies may
not discriminate on the basis of handicap. A recipient that offers
physical education courses or that operates or sponsors intercollegiate,
club, or intramural athletics shall provide to qualified handicapped
students an equal opportunity for participation in these activities.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different only if
separation or differentiation is consistent with the requirements of
Sec. 605.43(d) and only if no qualified handicapped student is denied
the opportunity to compete for teams or to participate in courses that
are not separate or different.
(b) Counseling and placement services. A recipient to which this
subpart applies that provides personal, academic, or vocational
counseling, guidance, or placement services to its students shall
provide these services without discrimination on the basis of handicap.
The recipient shall ensure that qualified handicapped students are not
counseled toward more restrictive career objectives than are
nonhandicapped students with similar interests and abilities. This
requirement does not preclude a recipient from providing factual
information about licensing and certification requirements that may
present obstacles to handicapped persons in their pursuit of particular
careers.
(c) Social organizations. A recipient that provides significant
assistance to fraternities, sororities, or similar organizations shall
assure itself that the membership practices of such organizations do not
permit discrimination otherwise prohibited by this subpart.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. Sec. 605.48-605.50 [Reserved]
Subpart F_Health, Welfare, and Social Services